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Metro Detroit Family Law Attorneys

Metro Detroit Family Law Attorneys

If you have children and are considering moving out of state, especially if you are the primary custodial parent of the minor child(ren), you must first get the other party’s written consent or petition the court to enter an Order allowing you to leave the State of Michigan with the children. In all Judgments of Divorce and Custody Orders, language is required, commonly referred to as the “change of domicile” provision, which usually says something similar to this:

The domicile or residence of the minor child shall not be removed from the State of Michigan without the prior written approval of both parties, or by order of the judge who awarded custody or his successor.

The purpose for this provision is to ensure that a custodial parent’s move out of state is legitimate and not as a means to frustrate or deny the non-custodial parent access to the minor child(ren).

With the downturn in the economy and the increasing lay-offs, buy-outs and current unemployment rate in Michigan, change of domicile is becoming a hot topic in family law cases.

In the most simple circumstances, the parties agree to the change of domicile, which usually means a change in the parenting time schedule, and both parties sign a written agreement, which if approved by the court, is entered as an order.  However, changes of domicile cases are rarely ‘simple’ and often take some creative thinking. 

If the parties cannot mutually agree on a change of domicile, the party can file a petition to change domicile.  (Note: filing the petition does not allow you to move, it only begins the process of seeking court approval of the move). It is important to start you change of domicile proceeding well before you plan to actually move. It often takes many months before a final decision can be made by the court, if the other side is not agreeable to the terms you are offering.  An evidentiary hearing will be conducted at which time the party seeking a change of domicile must prove by a preponderance of the evidence that the change in domicile is warranted. 

Under Michigan Law, before the court will permit a legal residence change, the following facts will be considered, with the child as the primary focus of the court’s deliberations:

  • Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.
  • 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.
  • 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.
  • 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.
  • Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

Even if the court grants a change of domicile, the challenge does not end here.  When parents live in different states, continuing a parent-child relationship becomes more difficult, but is still possible, so long as the parent left behind continues to have substantial and quality parenting time with the minor child(ren).  The Court must therefore determine that it is in the best interest of the child to give the moving party primary custody of that child, and the party remaining behind, sufficient parenting time during the year so as to maintain the parent child relationship

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Our Detroit divorce attorneys have worked on both sides of this issue.  Every case is unique.  Every set of facts is analyzed differently under the legal criteria to be considered.  Please feel free to contact our Plymouth, MI family law office today.