I have been asked by several therapists to address the issue of change of domicile when one parent wants to move the legal residence of the minor children more than 100 miles or outside the state of Michigan.
Under MCL 722.31, a parent who has custody subject to a court order, may not move the legal residence of the minor child more than 100 miles from the child’s legal residence at the time the order was issued, unless the other parent consents or they receive permission from the court.
In most divorces involving minor children, there is a temporary order for custody, parenting time and child support entered at the time the case is filed. Therefore, from the date the case is filed, the parents are usually subject to the change of domicile statute.
First, this statute only applies if the parents have joint legal custody. There are two forms of custody considered by the court, “legal” custody, which involves the ability to make decisions regarding the child’s education, health, religion and welfare, and “physical” custody, which involves where the child lives. Predominantly, courts will order joint legal custody, giving both parents the right to participate in making important decisions regarding the child’s welfare, and award physical custody to one parent with the other parent having a parenting time schedule.
In the rare cases where one parent has sole legal custody, that parent can move without the consent of the other parent or the permission of the court.
However, in the vast majority of cases, where the parents have joint legal child custody, the parent wishing to relocate must obtain the consent of the other parent or permission from the court. If the non-custodial parent does not consent, the custodial parent will have to file a motion for the change of domicile.
In Watters v. Watters, 112 Mich App 1 (1981), the court adopted a 4 prong test which had been used in a New Jersey case, D’Onofrio v. D’Onofrio, 144 NJ Super 200 (1976). The factors that the court shall consider are:
It [the court] should consider the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children.
It must evaluate the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the noncustodial parent, and whether the custodial parent is likely to comply with substitute visitation orders when she [or he] is no longer subject to the jurisdiction of the courts of this State.
It must likewise take into account the integrity of the noncustodial parent’s motives in resisting the removal and consider the extent to which, if at all, the opposition is intended to secure a financial advantage in respect of continuing support obligations.
Finally, the court must be satisfied that there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parental relationship with the noncustodial parent if removal is allowed.
In 2001, the Michigan Legislature codified the D’Onofrio factors and added a fifth factor regarding whether there has been domestic violence, regardless of whether the violence was directed against or witnessed by the child.
In 2004, the Michigan Court of Appeals held that when considering a motion for a change of domicile, the court also must make a determination that the move is in the best interests of the children as outlined in MCL 722.27. The court stated, “It would be illogical and against the intent of the Legislature to apply MCL 722.31 without considering the best interests of the minor child if the change in legal residence would effectively change the established custodial environment of the minor.” Brown v. Loveman, 260 Mich App 576 (2004).
This view was upheld in an unpublished decision in Iwansak v. Nielson, Court of Appeals No. 251396 (2004). In this case, the court found that the D’Onofrio factors focused on the prospective benefit of the custodial family unit, instead of on the child. The case was remanded to the trial court in order to apply the “best interest” factors.
In many cases, when applying these factors, courts predominantly focus on the whether the move has the capacity to improve the quality of life for both the child and the relocating parent. Courts can interpret this standard very differently. For example, in Dick v. Dick, 147 Mich App 513 (1985), although the mother was able to demonstrate that there would be an improvement in the quality of life where the climate in Colorado would be beneficial to the health of the children, the children would attend a more modern school with smaller class sizes and they would be able to continue with their religious instruction, violin lessons and sports activities, the court denied the motion to change domicile because it found that the children had a “day to day presence and relationship with their father” and that the boys were in need of a fatherly image.
Conversely, in Anderson v. Anderson, 170 Mich App 305 (1988), the mother presented evidence that her husband “hoped to obtain employment in Arizona,” arguing that the move would further her husband’s career, which would allow her to spend more time with the children rather than working outside the home. The court approved the move, finding that her new husband’s career would improve the family situation, even though he had not yet obtained employment.
Due to the disparity in results in the change of domicile cases, which occur due to the high number of variables between the cases, I recommend that parties first try to work out a compromise with the non-custodial parent prior to filing a motion with the court. If the parent does file a motion to change domicile, they should make sure that they are fully prepared with as much information about their new residence as possible, specifically about the quality of life issues such as the quality of the schools, parks and cultural activities.