The decision to move out is often very difficult when contemplating or going through a divorce. This decision is further complicated when children are involved. For instance, there may be an existing court order or judgement regarding child custody. There may also be uncertainty as to how the child or other parent will react to this relocation.
Using knowledge from over 30 years’ experience in family law and divorce cases, we’ve prepared a checklist which covers the main points someone should consider before moving out before, during, or after a divorce.
Safety First Before considering any other aspects, the most important factor on this checklist is the safety of you and your children. These are the first questions you should ask yourself before moving out.
Am I in danger if I remain in the home?
Is anyone else in danger if I leave, such as children?
Will leaving impact my divorce case?
Danger To Self Is there any physical domestic violence such as your spouse hitting, slapping, or locking you in a room against your will? Has your spouse or cohabitating partner made any threat of physical violence that concerns you?
If the answer to any of the above is yes, then it is critical to leave the house as soon as possible. Make sure that you tell a trusted person where you are. File a police report if you have been a victim of a crime. Document the threats and share them.
Do not go out alone with your spouse to any place except a public place, preferably one with security cameras. Your personal safety far outweighs staying to protect your personal property.
Danger To Others If your worry is that if you left the home without your child and they may be neglected or abused, then your plan is more complicated. Always err on the side of safety. Find a place where you and the children are safe. Discuss your concerns with your attorney immediately. The attorney may be required to file a motion to have your spouse vacate the marital home or for supervised parenting time with the minor children.
2) Divorce Strategy
Your personal safety is the most important issue, property issues will be handled during mediation or a trial. If your spouse is acting crazy and making threats that they will call the police or make false allegations of domestic violence be careful, this may be a solid reason for you to get out.
It is better to sort out personal property later, then be facing false charges. Take out as much of your personal property as possible prior to leaving, especially if you have something important or not replaceable. Angry spouses have been known to destroy personal property after the other spouse moves out.
Documenting the contents of the house prior to leaving using lists and photographs is very important, as these can be used for evidence of what was in the house if there is a discrepancy later on. In case of false charges and the house is trashed later on this may show what the house looked like right before you vacated it.
If it is possible, consult with a divorce attorney prior to moving out, or making any drastic decisions. This can ensure you are in the best position possible for any future divorce proceedings.
“The custodial environment of a child is established if over an appreciable amount of 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 the permanency of the relationship shall also be considered.” MCL 722.27(1)(c).
If YES, the move could potentially uproot the child/children from the place they consider “home”, then you must demonstrate to the court that the move is in the best interests of the minor children. The court requires clear and convincing evidence (i.e. evidence which substantially makes it more likely than not that the move is in the best interests of the children.
If NO, your circumstances are such that the child hasn’t lived in their current residence for an appreciable amount of time, e.g. 6 months, or are not provided with guidance, discipline, the necessities of life (food, clothing, a proper bed, etc.), and parental comfort, then you must demonstrate to the court that the move is appropriate by a preponderance of the evidence. This is generally less evidence than is required if there is an Established Custodial Environment, but just enough to make it more likely than not that the move is in the best interests of the child.
Next, if there is a current custody order in place and the change of domicile will result in a move more than 100 miles from where the child lived at the time the court case was filed, and the exceptions of MCL 722.31(2)-(3) do not apply, the court must then conduct a Change of Domicile Analysis.
4) Child Custody & Change of Domicile
Once you’ve established that your personal safety is not at risk, the next thing to consider before moving is if there’s a current custody order or judgment in place.
If a custody order or judgment is in place, then the domicile or residence of the child/children may not be moved from Michigan without the approval of the court where the order or judgment was entered. In petitioning the court for a change of domicile, you must show proper cause or a change of circumstances. All if this falls under MCL 722.31(1) & 722.31(4).
There are exceptions to this rule which apply under MCL 722.31(2)-(3) as follows:
The relocating parent has been granted sole legal custody;
The parents’ residences were more than 100 miles apart when the legal action commenced;
The move results in the residences being closer; or
Both parents consent to the residence change. (Such consent must be as to a specific relocation and not one provided in general terms prior to a relocation plan.)
If a custody order or judgement is not in place, then the question will be if the non-relocating parent object will object. Questions to consider are:
If yes, will the move change the child’s Established Custodial Environment?
If no, obtain consent in writing (e-mail, text, print, etc.) and leave. This is allowed under MCL 722.31 (2).
5) The Five Factors Considered by Courts
MCL 722.31(4) outlines the five factors the court shall consider:
(1) Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.
Are you moving to pursue a better job or a higher paid position?
How does the new school and community life compare to the child’s current school and community?
Does the child have any other close family members (other than the parent) close to the new home?
Does the child currently enjoy extracurricular activities or sports programs that will be upset by the move?
What type of child care arrangements are available in the new community, as compared to the current community?
(2) The degree to which each parent has complied with, and utilized his or her parenting 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.
If there is a current parenting time order in place, has it been followed consistently and properly by each parent?
Do you want the child to continue seeing the other parent on a regular basis? If so, how do you propose to deal with the travel and distance?
(3) 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.
Does the child currently enjoy a meaningful relationship with the non-relocating parent?
Is the child old enough to have had an opportunity to develop a close bond with the non-relocating parent?
For young children, how do you propose to compensate for the loss of day-to-day contact between the child and the non-relocating parent? (i.e. will big blocks of time, like summer or Winter Break, be sufficient?)
Are you prepared to incur the costs associated with transporting the child between the two households?
Are you willing to comply with all the court’s orders and appear back in court if requested?
(4) 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.
Does the non-relocating parent currently pay or receive child support?
Has the non-relocating parent indicated that he or she doesn’t want child support to go up or down in the event of the move?
Is the non-relocating parent working?
Has child support been an issue of contention in the past?
(5) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
Are you moving in response to an episode or history of domestic violence from the non-relocating parent?
Have you sought counseling or support in the past for dealing with domestic violence?
Have your friends or family witnessed any episodes of domestic violence between you and the other parent?
Do you understand that domestic violence can be verbal, emotional, and physical?
Have the police ever been called by you or the other parent following an argument or fight?
Do you believe you will be safe in your new home/community?
Is there a Personal Protection Order in place?
Have your children ever been abused (verbally, emotionally, or physically) by the other parent?