Divorce Wisdom: Removal of Domicile – Should You Stay or Should You Go?

With the troubled Michigan economy, many parents are forced to consider employment opportunities outside of the state. If an out-of-state move is necessary, a divorced parent will need to request court permission to leave the state if they share legal custody of their minor child with the other parent. Before the economy went awry, a request to move out of state with a child was not easily granted in a case where both parents were active participants in a child’s life. However, nowadays with more and more people losing jobs, the necessity of an out-of-state move has become a reality for many families.

In Michigan, the Court views a request for a change of domicile from the perspective of whether the move will improve the quality of life for the family with the focus on the child. The Court will consider the following five (5) factors:

Factor A: Whether the legal residence change has the capacity to improve the quality of life for both the children and the relocating parent.

Factor 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.

Factor 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.

Factor 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.

Factor E: Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

In viewing the five (5) factors outlined above, the Court must also determine the appropriate burden of proof to employ when deciding whether to grant your request to move or not. Therefore, the Court must first determine whether an established custodial environment exits with one or both parents. The custodial environment of a child 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.

If there is an established custodial environment in your house, but not in the house of the other parent, then the Court will view the five (5) factors based upon the “preponderance of the evidence” presented. If there is an established custodial environment with you and the other parent, then you need to prove to the Court by the higher standard of “clear and convincing evidence” that the move is in your child’s best interest.

Typically, if you file a motion for a change of domicile, the other parent will most likely counter with a motion for a change of custody. If the Court has determined that there is an established custodial environment in both homes, it must also conduct what is called a “best interest analysis” in which the Court views twelve (12) specific factors as they relate to the well being of your child. The best interest of a child is considered the sum total of the following factors:

(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.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care and 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.

(h) The home, school, and community record of the child.

(i) The reasonable preferences 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 parents 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 against or witnessed by the child.

(l) Any other factor considered by the Court to be relevant to a particular child custody dispute.

If there is an established custodial environment in only the moving parent’s home, the Court does not need to go through the best interest analysis. The factors only need to be considered in cases where there is an established custodial environment in both households. The Court does not have to conduct two (2) separate hearings so long as the twelve (12) factors are addressed by the Court and in this scenario the parent wanting to move must prove by clear and convincing evidence that the move is it in the child’s best interest based upon the factors.

Whether you live in Michigan or not, here are some general points to consider:

• If you know you need to move, try to work out an agreement with the other parent before turning to the courts for help. Make a parenting time proposal to the other parent in writing that provides as much parenting time as possible for the non-moving party. If you have to accept a position across the country, you will need to share parenting time with your ex in bigger blocks of time. One parent could have custody during the school year and the other could have custody during the summer and school breaks as well as all of the child’s long weekends during the school year.

• Your proposal should also include some economic assistance with the cost of transportation.

• Offer to keep the jurisdiction in the original state, regardless of the move.

• Offer to set up Skype and other lines of communication that will assist the non-moving parent with daily contact with the child.

• Try to find employment in the states closest to the home state.