Oftentimes, after a separation or the beginning of a court case regarding parenting time and custody for children, one of the parties will seek to move. This is to be expected, given the lengthy term that many child parenting time and custody cases are overseen by the court. While there are many items that parties’ need to be aware of regarding custody and parenting time, legal custody should be forefront of those concerns. This is particularly true when it comes to a change of residence.

How legal custody affects changes of domicile

Court rules in Michigan dictate that family law actions regarding custody are governed by The Child Custody Act. The Child Custody Act, MCLA 722.31, sets standards for custodial residence for children that are part of a family law action in Michigan, including changing the residence of a child that is part of a family law action. The Child Custody Act, MCLA 722.31(1), states that a party can’t move out of Michigan, or more than 100 miles away from the location of the child’s current legal residence without prior approval of the court that is overseeing the family law action.

The Child Custody Act requires the court to look at certain factors for parents seeking to change the legal residence of a child either out of Michigan or more than 100 miles from the child’s previous legal residence under MCLA 722.31(4)(a). These factors include:

Whether the change in residence could improve the quality of life for the child and parent  looking to relocate;

How much each parent has complied with the parenting time order, and attempted to exercise their parenting time;

Whether the proposed move is being done to frustrate the other parent’s parenting time with the child;

That the proposed move would still allow the non-moving parent and the child a chance to have a substantial parent and child relationship;

Whether the non-moving parent is attempting to stop the move in order to keep child  support lower; and

Whether there is any history of domestic violence against or seen by the child.

Having sole legal custody when changing domicile

The factors stated above are typically called the D’Onofrio factors, in reference to a prominent case on the matter. These D’Onofrio factors are utilized by the court to determine whether the move would be in the child’s best interests. However, after the advent of the D’Onofrio factors, and their implementation into the Child Custody Act, Michigan lawmakers made a further law that can allow a custodial parent to avoid having the court review the D’Onofrio factors entirely.

There are some exceptions to the rules regarding changing a child’s legal residence under The Child Custody Act. Firstly, if the other parent consents to the residence change, the court will allow the move to happen. Secondly, if the child’s legal residences were more than 100 miles apart before the petition to change legal residence. Third, if the proposed change in the child’s legal residence would result in the two legal residences of the child being closer to each other than before the change. Finally, the rule is not required to be followed if “the order governing the child’s custody grants sole legal custody to one of the child’s parents”. MCLA 722.31(2). This last exception, added after the D’Onofrio factors were introduced, makes it essential to secure legal custody rights.

Therefore, having at least joint legal custody is crucial to protect against the other party being able to relocate. Similarly, if you are anticipating relocating, attempting to get sole legal custody can make it a much easier matter to get the Court’s approval.

Review your legal custody before moving

If you are facing an issue regarding legal custody, the Grand Rapids Law Group, PLLC would look forward to assisting you.

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