The court-ordered parenting time schedule will be thrown off if you move your child. The effects of the child’s new residence should be considered by you. What you need to know about relocation & change of domicile is not about filling up forms. The established routine of the child, which includes parenting time, is significantly impacted by relocation and changing of residence.
Click here to watch the video on What You Need to Know About Relocation & Change of Domicile in Michigan
The court must be informed of the important reason for the relocation. There is a lot of work to do in order to justify moving. An attorney will need weeks to compile the information to learn more about your change of address. Hearings will be scheduled by the court. Motions must be submitted. Your court filing for your proposed change of residence must be completed months in advance.
The question of relocation and change of domicile is not really much of an issue of divorce as it is of child custody and parenting time. Relocation and change of domicile are disruptive decisions affecting the routine of parents and children alike. You chose a home, a residence, or a domicile for stability. A sudden move to change is the opposite of stability.
What is a domicile?
The question of determining residency and domicile is material to the determination of tax and the administration of service to residents of a particular state. Any state would like to know who should be under their tax laws or who should access benefits provided by the state.
According to section 206.18 of Chapter 206 Income Tax Act of 1967 of 2016 Michigan Compiled Laws a resident is defined as:
[ a ] It applies to natural persons, a person who is domiciled in the state.
[ b ] It applies to an estate, a decedent’s estate who was a resident of this state at the time of his or her death.
[ c ] It applies to a trust, any trust established by the will of a decedent who, at the time of his death, resided in this state, as well as any trust established by, or made up of, a person residing in this state, at the time the trust becomes irreversible.
[ d ] It applies to a corporation, the term “resident” denotes a corporation formed in accordance with the laws of this state.
A taxable year is presumed to have ended on the date of death for the purposes of the definition of “resident” under the tax code.
A person’s “domicile” is the location of their true, fixed, and major residence, from which they expect to return anytime they are away. A person’s domicile lasts until they establish another permanent residence. If a person changes their status from resident to nonresident or vice versa throughout the tax year, their taxable income must be calculated separately for each status. A person is considered to be a resident who resides in this state if they spend at least 183 days here during the tax year or more than half of the time during a tax year that is less than 12 months.
You are allowed to have more than one residence, but only one domicile at a time. This domicile is kept up until a new permanent residence is found. Your domicile can only be altered once all of the following conditions are satisfied:
[ 1 ] You specifically intend to leave your current domicile,
[ 2 ] You specifically intend to acquire a new domicile, and
[ 3 ] You have physically moved into your new domicile.
You must provide precise evidence for each of these three conditions.
How Will Relocation or Change in Domicile Impact a Custody Order?
Remarrying divorced parents or one parent being given a new job may require moving the children under a Michigan child custody decree more than 100 miles from their existing legal address are both common occurrences. People or families can have legitimate reasons for moving and relocating, a trend in urban migration seen already in today’s population.
What Are the Common Reasons for Relocating or Changing Domicile?
Here are common and legitimate reasons for families or couples moving.
[ a ] Job changes and career opportunities
[ b ] New relationship or change in lifestyle
[ c ] Preference for a specific school district
[ d ] Financial restrictions and challenges
[ e ] Rent or buy choices in housing
[ f ] Need for more livable space
[ g ] Change of ambiance and scenery
[ h ] Recovering from or avoiding COVID-19
When parents have a court order for custody and visitation, the document specifies their legal responsibilities with regard to a child’s relocation. Whether a parent needs a court permit before moving depends on the sort of custody they have. A parent who receives sole custody of a child is given complete legal and physical custody of the child. As an alternative, if joint custody is granted, both parents share the child’s legal rights and are required to routinely see the child.
Changes to a child’s domicile may be prohibited by a Michigan custody order. If so, a fresh court order must be requested by the parent who wants to move away with the child.
What Kind of Relocation Requires Approval by the Court?
Changes to a child’s domicile are prohibited by Michigan custody statutes unless certain conditions are met. Any move to a home more than 100 miles away from the child’s existing abode necessitates the consent of the other parent or court approval. Even if it’s only a few miles away, a court must allow the move if one parent wants to take the child to a home in another state. However, the parent will probably still be required to participate in court proceedings after the move.
What Do You Need to Do to Get Approval From the Court?
The parent who wants to change the child’s residence must submit a motion with the Michigan state courts if the other parent objects and judicial approval is necessary. A justification for the motion is required. Relocation is frequently done for work-related reasons, educational possibilities, or familial ties. It is legal for one parent to object to the move and request a court hearing. The court must consider a number of issues before rendering a ruling.
The court must take into account whether the relocation could enhance the child’s quality of life or damage his or her relationships with both parents. If the judge approves the transfer, the court must also consider each parent’s track record of compliance with the existing custody arrangement to assess if the relocated parent would adhere to a modified visitation schedule.
What Are the Exceptions to the Rule Regarding Relocation?
The 100-mile limit defined in Michigan Compiled Laws § 722.31(3) has two exceptions.
First off, as long as you stay in Michigan, you do not need the court’s permission to move even further apart if you and the other parent were already more than 100 miles apart at the start of custody negotiations.
Second, you do not need the other parent’s permission or the court’s approval before moving if domestic violence is a threat. To find a safe place, you are free to travel without permission as far as you need to. You can even bring your child. You must nonetheless inform the court of your new address. In order to prevent the controlling parent from finding you, the court can keep your information confidential.
Even if you moved because of domestic abuse, you’ll still need the court’s approval to stay there. To establish if your new residence is appropriate, the court will review your case and the aforementioned considerations.
How Does the Court Make Determinations About Domicile?
Changing your child’s address used to be pretty simple in Michigan; all that was needed was for the parent with primary physical custody to complete a form with the child’s new address. The Friend of the Court would get the form. It was still necessary to obtain a court order before 2001 in order to relocate outside of Michigan.
The ability to move your child’s residence has become much more challenging since 2001. Another way to look at it is that Michigan courts place more importance on upholding the initial custody and visitation arrangement reached between a child’s parents.
The Test Case Challenging Relocation
The court in Watters v. Watters, 112 Mich App 1 (1981), adopted four-part criteria that had been applied in D’Onofrio v. D’Onofrio, 144 NJ Super 200. (1976).
These are the factors the court must take into account:
[ a ] The potential benefits of the move should be taken into account by the court in light of how likely it is to enhance both the custodial parent’s and the children’s overall quality of life.
[ b ] It must assess the sincerity of the custodial parent’s motivations for wanting to relocate in order to ascertain whether the removal is primarily motivated by a desire to thwart or frustrate the noncustodial parent’s visitation rights and whether the custodial parent is likely to abide by substitute visitation orders once the parent is no longer within the jurisdiction of this State’s courts.
[ c ] It must also evaluate the noncustodial parent’s sincerity in opposing the removal and the degree, if any, to which the objection is meant to obtain a financial benefit in relation to ongoing support obligations.
[ d ] Finally, if removal is permitted, the court must be convinced that there will be a practical chance for visitation in place of the weekly schedule that can serve as an appropriate foundation for maintaining and strengthening the parental relationship with the noncustodial parent.
The 2001 case D’Onofrio v. D’Onofrio led to stronger protection of parental time agreements in Michigan. This case served as the inspiration for Michigan’s new law, MCL 722.31(4), which addresses the relocation of a young child.
When deciding whether to grant a parent’s request to move a minor child, the original D’Onofrio court considered the above-mentioned four elements. The D’Onofrio case wasn’t even under the jurisdiction of Michigan. The case was litigated in the state of New Jersey.
Institutionalizing the 4 Factors in D’Onofrio v. D’Onofrio
Michigan eventually adopted the same 4 factors after the courts in New Jersey decided on a 4-factor examination for requests to move a child. Michigan quickly added a fifth element to the list following that. The final element relates to domestic violence.
In Michigan, we continue to apply the original four D’Onofrio factors in addition to the fifth element that has been introduced for the judge’s consideration. The following details the factors:
[ 1 ] Whether the move is in the best interests of the child and the moving parent. Will both the parent’s and the child’s quality of life improve? The judge will place less attention on the parent who wants to move away and more emphasis on how to improve the child’s life.
[ 2 ] Is it the parent’s intention to relocate to frustrate the parenting time plan, or has each parent complied with and used their allotted parenting time with the child?
[ 3 ] Whether or if, in light of the move, each parent will still be able to maintain and grow a positive relationship with the child. Can the parenting time schedule be modified due to a move, and if so, will both parents be likely to follow the modified schedule?
[ 4 ] Whether the parent who is opposed to the change in legal residence is doing so for financial gain. Is this parent attempting to enforce a support obligation?
[ 5 ] The child’s safety: Will moving put them in a scenario of domestic violence? Will the children be in a position where they might witness domestic violence even if they aren’t the victim of it?
What is best for the child is the main consideration of the court in any custody or parenting time dispute in Michigan. Before deciding whether to permit or refuse relocation, the court may also consider “best interest factors” in addition to the above-mentioned factors.
Subscribe to our YouTube channel today for more advice on Family Law!
Goldman & Associates Law Firm is here to with information about Child Custody and Divorce in the State of Michigan.