I am Cameron Goulding, a divorce lawyer in the Rochester area of Oakland County, Michigan. As a family law attorney, it is very important to stay on top of this ever changing area of the law. One issue that we are seeing a lot more of in recent years given our mobile society is a motion to change domicile by one parent. This requires a complex analysis by the court and it is often hard to determine the actual outcome before filing the motion. This makes such moves a risky proposition for both parents. .
How will a divorce court in Michigan analyze a request by a parent to move more than 100 miles with the children where the parents share joint legal custody?
The case of Rains v Rains, (For Publication) Mich App Docket No. 312243, (June 13, 2013) really laid out the way the Court of Appeals wants the trial court to consider such motions. It is a published decision which means that all of the family law courts in Michigan must follow the framework that it establishes. In that case, the parents had joint legal custody and shared relatively equal parenting time with the father having roughly 156 overnights and the mother 209 overnights. The mother filed a motion to move with the child, an eleven-year old boy, to Traverse City because her fiancé accepted a new position earning more money there as well as a variety of other reasons.
The Oakland County Circuit Court Family Division judge denied her motion. Further, the judge changed the parenting time to a “week-on/week-off” schedule so that the parents each have approximately 182.5 overnights. The Court of Appeals affirmed the trial court. It then laid out the following framework for all Michigan divorce trial courts to follow when considering a change of domicile motions. It is a four-step approach.
First, a trial court must use a preponderance of the evidence standard when determining whether the change of domicile factors support the motion. The change of domicile factors are basically: (a) could the move improve the quality of life for the child and the relocating parent; (b) whether the parents have utilized their parenting time with the child and is the move part of a plan to stop the other parent from spending time with the child; (c) is it possible to modify the parenting time schedule in a manner to provide an adequate basis for preserving the relationship between the other parent and the child; (d) whether the parent opposing the move is trying to seek an advantage with respect to child support and (e) any domestic violence.
Second, if the divorce court determines that the moving party has shown by a preponderance of the evidence that a change of domicile is warranted, then the trial court must consider whether there is an established custodial environment with the non-moving parent. The custodial environment is established if over an appreciable period of time the child naturally looks to the parent for guidance, discipline, the necessities of life and parental comfort. It is an environment of significant duration in which the parent provides care, discipline, love guidance and attention that is appropriate to the age and needs of the child.
Third, if the court determines that the moving parent has shown by a preponderance of the evidence that the move is warranted and if there is an established custodial environment, the trial court must determine whether the change in domicile would cause a change in an established custodial environment. It is possible for a parent to move with the children without destroying the custodial environment, so the judge must make this decision before proceeding to step four.
Finally, after the divorce court decides that the moving parent has shown by a preponderance of the evidence that the change of residences is warranted, there is an established custodial environment and that the proposed move would change an established custodial environment, then the parent seeking the move has to prove by clear and convincing evidence that the change is in the child's best interests. This means, that even if the party seeking the move has prevailed up to this point, that parent must then “win” a change of custody battle.
As one can see, this is a very lengthy and stressful process for the entire family to endure and such a decision should not be taken lightly as the results can be severe and difficult to reverse. Experienced counsel is required.