Written by attorney Joshua L. Ben

Change of Domicile in Michigan Family Law

I was sitting in Oakland County Circuit Court last week. I saw a mother asking the court to allow her and her children to move out of state. The mother said she was able to find better work in this new state than in Michigan. The father opposed this because it would mean that he would not see his children as much.

Many people are having to leave the state for financial reasons. Often old clients call and ask how they can move out of state when their ex-spouse will not agree to it.

If the other party will not give permission that the judge in your case must decide. The Child Custody Act, MCL 722.21 governs child custody disputes.

When a parent wishes to move with a minor child to a location more than 100 miles away, and the parent does not have sole legal custody, the trial court must consider the following factors, keeping the child as its primary focus:

(a) Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.

(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.

(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.

(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.

(e) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

Where there is a joint established custodial environment, neither parent's custody may be disrupted absent clear and convincing evidence. Sinicropi v. Mazurek, 273 Mich.App. 149, 178, 729 N.W.2d 256 (2006), citing Foskett v. Foskett, 247 Mich.App. 1, 8, 634 N.W.2d 363 (2001). "[T]he trial court is not required to consider the best-interest factors until it first determines that the [domicile] modification actually changes the children's established custodial environment." Rittershaus v. Rittershaus, 273 Mich.App. 462, 470-471, 730 N.W.2d 262 (2007). Where the change in domicile will not affect the established custodial environment, the moving party has only "the burden of establishing by a preponderance of the evidence that the change in domicile is warranted." Mogle v. Scriver, 241 Mich.App. 192, 203, 614 N.W.2d 696 (2000).

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