In this article, I will discuss a motion to change of domicile or legal residence in Michigan. MCL 722.31 is the statute. This is the motion that must be filed when people subject to a custody order want to relocate to another city. This article covers co-parents with joint legal custody. If a parent has sole legal custody then MCL 722.31 does not apply. When the relocating parent wants to move to a location within 100 miles of their child’s other parent, based on each parent’s residence at the time of the order, court approval isn’t needed. There is an SCAO form that Friend of the Court provides to people seeking a change of residence for their children, FOC 115. This form is incredibly shallow, it is a watered-down generic motion designed to be a one size fits all motion. Unfortunately, the form fails to address the factors found in MCL 722.31, factors that people must demonstrate to secure permission from the court to move.
Before filing a motion regarding change of domicile or legal residence, the parent seeking the move should propose a new parenting time schedule and propose it to the other co-parent. This is normally where the trouble starts. Either the co-parent agrees but will not put the agreement into writing or the co-parent completely refuses to consent to the move. When this happens, the relocating parent has no choice but to file a motion.
A motion regarding change of domicile or legal residence is complicated. The relocating parent should file the motion to change legal residence for the child as soon as possible. I have talked to many people who put off filing the motion until the last minute, causing all sorts of problems, including delaying their move. This motion may become very complicated and the Courts move very slowly.
There are four main steps for the Court to determine at the hearing. The factors found in the statute are incorporated in the first step.
A court deciding a change of legal residence motion should first determine whether the movant has shown by a preponderance of the evidence that the change is warranted based on MCL 722.31(4). Rains v Rains, 301 Mich App 313, 326–327, 836 NW2d 709 (2013). If the movant meets this burden, the court must decide if an established custodial environment exists. Rains, 301 Mich App at 327. If the court finds that there is an established custodial environment, the court must next decide whether the change of residence would alter that environment. Id.(emphasis added) at 328; see also Rittershaus v Rittershaus, 273 Mich App 462, 465, 730 NW2d 262 (2007). If the residence change will alter the established custodial environment, the movant must show by clear and convincing evidence that the move “is in the child’s best interest.” Rains, 301 Mich App at 328.
Statute Factors MCL 722.31
a. Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.
Under this factor. the moving party must demonstrate how the move will improve the lives of both the relocating parent and the children. The relocating parent should show how a new job will pay more money or provide better benefits. The relocating parent must also show how the move will improve the quality of life for the child.
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.
This factor contains two separate inquiries. First, looking back, has each parent demonstrated that they desire a relationship with the child by utilizing and maximizing parenting time under the current order. If the parent opposing the relocation has a poor history of using their parenting time, then the Court needs to know this history. The underlying theory behind this factor is clear; why should the court protect the visitation of the parent that opposes the move when this parent doesn’t even use the time allotted to them right now.
The second inquiry focuses on the parent that desires the relocation. If the relocating parent has a history of being quick to deny parenting time or has openly expressed disdain for the co-parent, then the relocating parent’s motive may be simple to screw their co-parent, and minimize parenting time. The relocating parent needs to clearly express their motives and reasons why they want to relocate.
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.
Courts have interpreted this factor as the following:
For this factor, our inquiry is “whether the proposed parenting-time schedule provides ‘a realistic opportunity to preserve and foster the parental relationship previously enjoyed’ by the nonrelocating parent.” McKimmy, 291 Mich.App. at 584, 805 NW2d 615, quoting Mogle, 241 Mich App at 204, 614 NW2d 696. Furthermore, “the visitation plan need not be equal to the prior visitation plan in all respects.” Brown 260 Mich App at 603, 680 NW2nd 432.
Gagnon v. Glowacki, 295 Mich App 557, 815 NW2d 141 (2012).
This factor focuses on the new proposed parenting time schedule by the relocating parent. The reality is that when the parents move apart, the parenting time schedule reverts to one parent with custody during the school year and the other parent with custody during the summer break. The sooner the relocating parent appreciates this fact the better. If the relocating parent expects to have custody of the child during the school year and equal time in the summer, then obtaining court permission for the relocation will be that much harder. Child overnights as calculated in the child support order should be examined as a measuring stick. The overnights associated with the new parenting time should be “in the ballpark” with the old order.
An important point to remember is that the new parenting plan doesn’t have to be equal to the prior visitation plan. The new plan has to reflect a sincere effort to preserve the non-relocating parent’s relationship with the child.
A less apparent need is for the relocating parent to point out that a distance custody order can be implemented by each parent. In other words, it is important to show the court that each parent has the means to make the custody order work.
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.
This factor is irrelevant in many cases. However, where the facts trigger arguments and analysis under this factor, it quickly becomes apparent that the parent opposing the move is motivated by financial interests, and not by what is best for the children. Backdoor deals regarding child support are out there. For example, “I will consent to your relocation if you send back to me my child support.” Clearly this parent is opposing the relocation to secure a financial advantage.
e. Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
If past domestic violence was part of the relationship between the parties, it should be discussed, particularly if the child witnessed the violence. However, the more time that has elapsed since the domestic violence incident and the motion for relocation, the less important this factor becomes. For example, a couple breaks up after domestic violence in the home. Not long after, the relocating parent, also the victim, motions for permission to relocate. The relocating parent would have some persuasive arguments for allowing the move, such as peace of mind and safety. However, if the domestic violence happened ten years ago causing a break-up, but the parents have been raising their child independently since then, the sting of domestic violence is less persuasive.
The Remaining Analysis
B. Is there a custodial environment between the non-relocating parent and the child?.
A custodial environment is established “if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.” MCL 722.27(c). “An established custodial environment is one of significant duration in which a parent provides care, discipline, love, guidance, and attention that is appropriate to the age and individual needs of the child.” Berger v Berger, 277 Mich App 700, 706, 747 NW2d 336 (2008). It is “marked by security, stability, and permanence.” Id.
A loving parent finds time to be with their children. It is possible for a child to have a custodial environment with both parents. This author believes that most parents each have a custodial environment with their child. It is easier to spot when there isn’t a custodial environment. Fact patterns such that the parent has drug abuse problems or addictions indicate no custodial environment. Often children take a backseat to their parent’s addiction. Another example is the part-time parent. This is the parent that doesn’t always exercise their parenting time with the children and frequently moves residences. This sort of parent doesn’t establish a stable permanent relationship with their child.
C. The relocation of the child will not materially alter the opposing parent’s, or non-relocating parent’s, custodial environment.
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
There is a fine point to be made under this step. The parent proposing the change has to argue that the proposed distance parenting time schedule would preserve the opposing parent’s relationship with the child. Here, again, it is important for the relocating parent to propose a new parenting time schedule that is designed to preserve the child’s relationship with the opposing parent. If the parent opposing the relocation had near fifty percent time with their child before the proposed move, the relocating parent needs to be generous with summer parenting time and school breaks. This generosity with parenting time will permit arguments that the new parenting time schedule will not alter or modify the custodial environment with the opposing parent. Granted, the parenting time will be different, but the new parenting time will allow a strong relationship between the opposing parent and child.
D. If the residence change will alter the established custodial environment, the movant must show by clear and convincing evidence that the move “is in the child’s best interest.”
At this point, the court must conduct a full analysis of a change of custody motion. This analysis requires evidence and argument related to the best interests of the child factors. Presenting the best interests of the child factors in court takes a lot of time.
About the Author
Matthew Benedict is an attorney practicing law in Traverse City Michigan, serving clients in all of Northern Michigan. Call today for an appointment: 2318834170
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