Change of Domicile Analysis
A parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child’s legal residence at the time of the commencement of the action in which the order is issued. MCL 722.31(1). “When a parent seeks to move the child more than 100 miles from the child’s current domicile, the trial court must analyze the factors set forth in MCL 722.31(4). Gagnon v Glowacki, 295 Mich App 557, __NW2d __ (2012). Nevertheless, the prohibition in subsection (1) does not apply if the other parent consents to the move, or the court, after complying with subsection (4), permits the change of residence. The prohibition in subsection (1) also does not apply if the order governing the child’s custody grants sole legal custody to 1 of the child’s parents. MCL 722.31(2).
The Five Factors
Subsection 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?
Yes, in Michigan non-custodial parents must not be denied access to records and information concerning their child unless that parent is specifically prohibited from having records by a protective order. These records may include records pertaining to school, medical, dental, day care and notification of meetings regarding the child’s schooling like a parent-teacher conference.
In Michigan sole custody means that one parent has primary physical custody as well as legal custody of the child. Joint custody in Michigan means that parents could share one or both of physical and legal custody.
Legal custody of a child in Michigan is defined as a parent having the responsibility over major decisions regarding the child’s upbringing, medical treatment, school enrollment, religious instruction and other similar matters.
Non-major decisions are to be made with the parent who has physical custody of the child in Michigan at the time that the decision is made. This means that the parent without legal custody of a child, may make certain decisions for the child while spending their parenting time.
In Michigan, a presumption exists that a fit parent’s decision to deny grand-parenting time does not create a substantial risk of harm to the child. A grandparent in Michigan may need to petition for time with grandchildren if the parents are denying them access. To rebut this presumption, and win on the issue, the grandparent must prove by preponderance of the evidence that the parent’s decision to deny grand-parenting time creates a substantial risk of harm to the child’s mental, physical or emotional health.
Yes, Michigan law prohibits a parent of a child in a joint custody arrangement in Michigan from moving more than 100 miles away from the child’s legal residence at the time the custody order was issued. There are exceptions in Michigan cases such as the other parent agreeing or if the original residence was initially 100 or more miles away, and this move actually brings the child closer.
Yes, but an award concerning child support, custody and parenting time in Michigan is always subject to the review by a Michigan court, and can be vacated if the judge finds that the award is not in the best interest of the child.
Michigan courts have held that duty to make support payments may be suspended if parenting time is denied unless the suspension of payments would adversely affect the children.
If the answer to this question is not clear, and one is strongly advised to speak to a Michigan family lawyer before taking action.