Divorce and separation can create a difficult situation for parents. A child who once lived in both parent’s house on a full-time basis now must divide his or her time between each parent’s home. Sometimes, the parents share joint physical custody and the child lives with each parent approximately 50% of the time. Other times, one parent has primary physical custody and the non-custodial parent enjoys parenting time with the child on alternating weekends and holidays. Creating a schedule for the non-custodial parent is already difficult because the child may be involved in a number of extracurricular activities, has obligations to attend school, or lives a distance away from the other parent that makes travel difficult and cumbersome.
What if one parent decides that they want to relocate and move further away from the other parent, perhaps outside of the State of Michigan? The increased distance will certainly put a strain on the other parent’s relationship with the child as frequent visits will not be possible and overall parenting time will decrease. What can the other parent do to stop this?
Michigan’s Child Custody Act addresses this very situation. “A child whose parental custody is governed by court order has, for the purposes of [the Act], a legal residence with each parent.” MCL 722.31(1). “Except as otherwise provided…, 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.” Id. The parent who wants to move more than 100 miles away from the other parent may only be permitted a legal residence change only after ONE of the following:
- The other parent consents to the change in legal residence. MCL 722.31(2). Although consent is not required in writing by statute, the parent that is moving should consider getting a notarized signature from the other parent as evidence in a possible future action that the other parent did not actually give permission.
- The court gives permission for a change in legal residence after a motion is properly filed, the other parent is given notice and an opportunity to be heard. MCL 722.31(4).
The court must consider a number of factors in rendering a decision on change in legal custody, “with the child as the primary focus in the court’s deliberations”. These so-called D’Onofrio factors (adopted in Michigan case law from a New Jersey family court case, D’Onofrio v D’Onofrio, 144 N.J. Super 200, 206-07, 365 A2d 27 (1976) and later codified in statute) are:
- FACTOR #1: Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent. MCL 722.31(4)(a). Courts have found in favor of the moving parent on this factor based on evidence that the relocation will cause a substantial increase of income from employment in the new area, therefore improving the family unit relationship and elevating their quality of life. Bielawski v Bielawski, 137 Mich App 587; 358 NW2d 383 (1984). Courts have also found in favor of the moving parent on this factor based on evidence that the relocation was due to remarriage and the child would be in a two-parent household that was stable and allow the moving parent to be a full-time, stay-at-home mother. Mogle v Scriver, 241 Mich App 192; 614 NW2d 696 (2000).
- FACTOR #2: 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. MCL 722.31(4)(b). If the other parent regularly fails to exercise parenting time as ordered, then the court will not be persuaded that allowing the custodial parent to move will further damage the parent-child relationship. The court is free to use its judgment in evaluating the credibility of witnesses in deciding whether a parent’s plan to move is designed to defeat or frustrate a parenting time schedule, but will likely find there is no such purpose if credible evidence is presented with respect to the other factors.
- FACTOR #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. MCL 722.31(4)(c). To satisfy this factor, “one must start with the premise that implicit in this factor is an acknowledgment that weekly visitation is not possible when parents are separated by state borders.” Costantini v Costantini, 446 Mich. 870, 873, 521 N.W.2d 1 (1994) (Riley, J., concurring). “[T]he visitation plan need not be equal to the prior visitation plan in all respects. It only need provide a realistic opportunity to preserve and foster the parental relationship previously enjoyed by [the non-relocating parent].” Mogle v Scriver, 241 Mich App 192, 204; 614 NW2d 696 (2000).
- FACTOR #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. MCL 722.31(4)(d). Not surprisingly, if the other parent fails to pay child support and the parent seeking to relocate is paying for most of the child’s care, then the other parent will have very little or no leverage on this factor.
- FACTOR #5: Domestic violence, regardless of whether the violence was directed against or witnessed by the child. MCL 722.31(4)(e). However, if the parenting seeking to change a child’s legal custody needs to seek a safe location from the threat of domestic violence, the parent may move to such a location with the child until the court makes a determination. MCL 722.31(6).
If the court finds that the D’Onofrio factors favor a parent looking to relocate, it may also have to consider the best interest factors of the minor child if the move amounts to a custody modification. For example, a parent in Dearborn who has joint physical custody of his child 50% of the time (e.g. 7 days on, 7 days off) will not be able to exercise those rights if the court permits the other parent to move from Detroit to Iron Mountain (nearly 8 hours away by vehicle). This great distance amounts to a de facto custody modification, if allowed, even if the other parent did not explicitly petition the court for a change in custody. However, family court judges can’t look away from the practical effects of such a request. The Michigan Court of Appeals has previously held that an in-state move in excess of 100 miles is sufficient proper cause and change in circumstances to reopen a custody matter. Sehlke v Vandermaas, 268 Mich App 262, 263; 707 NW2d 603 (2005). If the court finds that the change of domicile changes an established custodial environment with respect to the other parent, then the court is also required to conduct a best-interest analysis in considering the moving parent’s change of domicile motion (which may or may not require two separate hearings). Rittershaus v Rittershaus, 273 Mich App462; 730 NW2d 262 (2007). The best interest of the child factors that the court must consider are set forth in MCL 722.23:
- (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.
- (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.
However, a moving parent should keep in mind ALL of the following:
- A parent is not required to seek permission from the other parent or the court to move if he or she has sole legal custody of the child. MCL 722.31(2). If the party shares joint legal custody and the other parent does not grant permission for the move, then the relocating party must petition the court for approval. Spires v Bergman, 276 Mich App 432, 439; 741 NW2d523 (2007).
- A parent is not required to seek permission from the other parent or the court to move if, “at the time of the commencement of the action in which the custody order is issued, the child’s 2 residences were more than 100 miles apart.” Likewise, a parent is not required to seek permission from the other parent or the court to move if “the legal residence change results in the child’s 2 legal residences being closer to each other than before the change.” MCL 722.31(3).
- A judgment or order awarding custody of a minor child must provide that “the domicile or residence of the minor may not be moved from Michigan without the approval of the judge who awarded custody or the judge’s successor.” MCR 3.211(C)(1). A parent can be in violation of the court order if she or she crosses state lines to relocate without permission, even if the distance is less than 100 miles or the moving parent is actually moving closer to the other parent! The court must consider the D’Onofrio factors whether the child is moving inside of Michigan or outside of the state. Brown v Loveman, 260 Mich App 576; 680 NW2d 432 (2004). Parents cannot negotiate away or waive this provision by including contradictory language in the judgment of divorce or a consent order or else it will be unenforceable. Brausch v Brausch, 283 Mich App 339; 770 NW2d 77 (2009).
- A judgment or order awarding custody of a minor child must provide that “the person awarded custody must promptly notify the friend of the court in writing when the minor is moved to another address.” MCR 3.211(C)(2). Even if the child is only moving within the same city, the custodial parent must keep his or her address current with the Friend of the Court and the county clerk so that the judge knows where the child is located (even if the address is confidential as to the other parent).
A parent faces substantial consequences for failing to seek permission from the other parent or the court before changing the child’s legal residence. Any order determining custody and parenting time is required to have a provision that a parent governed by the order shall not change the legal residence of the child except in compliance with Michigan’s Child Custody Act. MCL 722.31(5); MCR 3.211(C)(3). A parent who violates these rules risks contempt of court which can lead to fines, repayment of the other parent’s attorney fees and costs, and possible jail time. The court can order that the offending parent move back with the child to the jurisdiction. The court may even order a change of custody to the non-custodial parent if the requirements for proper cause, change of circumstances and the best interests of the child are met. It is dangerous to move without permission and it may give the other parent the very leverage he or she was looking for. Don’t let the failure to file a motion lead to the other side being able to push their demands on you.
If you have physical and legal custody of a child with another parent and contemplate moving, then you should consult a family law lawyer right away to ensure that you are following all the appropriate legal procedures to avoid an unfortunate result. Likewise, the other parent who is aggrieved by the decision to allow relocation should seek legal counsel immediately to protect his or her rights.
If you or a loved one have a question about a family law matter or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.