Limitations on Changing a Child’s Residence
In any case where the parents share an award of joint custody, any proposed change of residence (sometimes referred to as a change of domicile) for the child is governed by statute. Specifically, MCL 722.31(1) governs any contested request to change the legal residence of a child under specified circumstances, and states as follows:
A child whose parental custody is governed by court order has, for purposes of this section, a legal residence with each parent. Except as otherwise provided in this section, 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.
In other words, in any case where the parties are awarded joint custody, neither parent can move the legal residence of the child more than 100 miles, unless permitted by certain exceptions. The exceptions under which this restriction do not apply include obtaining the approval of the other parent, cases where the parties resided more than 100 miles apart from the beginning, where the change in residence would actually bring the parents residences closer together, or by obtaining approval by the Court.
Factors for Determining if a Child’s Change of Residence is Proper
If a party seeks to obtain the approval of the Court to change the legal residence of a child, there are a set of factors for the Court to consider in determining whether or not to grant the request. These factors, set forth in MCL 722.31(4), are as follows:
(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; and
(e) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
Moving a Child Outside of the State
In addition to the above referenced statutory factors for a move in excess of 100 miles, there are also requirements for parents seeking to change the legal residence of a child or children to an address outside of the state of Michigan, regardless of the distance.
The four-prong test governing this type of request is set forth in case law, rather than by statute. However, they are very similar to the factors found in MCL 722.31(4). The four-prong test set forth in D’Onofrio v D’Onofrio, 144 NJ Super 200, 206-207 (1976), a New Jersey case adopted by Michigan Courts, are as follows:
- [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;
- [The Court] 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;
- [The Court] 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; and
- Finally, the Court must be satisfied that there will be a realistic opportunity for visitation in lieu of the weekly pattern which may provide an adequate basis for preserving and fostering the parental relationship with the noncustodial parent if removal is allowed.