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No Change-of-Domicile Analysis Required When No Previous Custody Order

I am a divorce lawyer in Auburn Hills, Oakland County, Michigan. My office is easily accessible to Rochester, Troy, Clarkston, Oxford, Lake Orion, Bloomfield and Birmingham.

 Typically, if a parent wants to move more than 100 miles or out of the state with his or her children after a divorce, the court must engage in a four-step analysis. It must (1) determine whether the move has the potential to improve the life of the parent and the child as well as certain other factors, (2) it must decide whether there is an existing custodial environment with the other parent, (3) it must decide whether the move will alter the existing custodial environment if it exists and (4) if it will alter the existing custodial environment then the court must analyze the custodial best-interest factors to determine whether the court should grant custody to the moving or non-moving party.

The Issue

Does a court have to engage in this four-step analysis if there is no existing custody order and a parent is seeking to move out-of-state?

The Answer

The matter of Foerster v McKinstry, COA 321529, December 9, 2014 (Unpublished) addressed this issue. In that case, after the breakdown of the parents' relationship, the father filed a petition for joint legal and physical custody and the mother filed a counter-complaint requesting sole legal and physical custody. The mother also filed a motion to relocate to Santa Fe, New Mexico because she was not able to find work in Michigan in her field.

The family court held a trial on March 13, 2014. Prior to that date, the court entered several parenting time orders but no custody order. The court stated that it would first address custody and the best-interest factors, then make a ruling regarding custody. After that, it would analyze the change-of-domicile and make a ruling regarding that issue. It decided to grant the parties joint legal custody, the mother sole physical custody and then granted the request to relocate.

The father appealed the decision. The Michigan Court of Appeals determined that even though the lower court issued an oral opinion regarding custody from the bench, there was actually no existing custodial order when it addressed the relocation because there was no written order until five days later. An oral opinion is not a valid binding opinion (only a signed written order) so at the time judge entered the order granting the request to relocate, there was no valid pre-existing the custody order. The Appellate Court further concluded that because there was no custody order, the lower court did not have to conduct the entire four-step analysis.

When considering this issue for the first time at a trial, the court must first determine whether there is an existing custodial environment with one or both parties. If there is an established custodial environment (regardless of whether there is an existing custody order), then the party seeking to alter the custodial environment has the burden to provide clear and convincing evidence that the modification to the custodial environment is the best interests of the child. This analysis is true in any custody case, the fact that the parent is moving more than 100 miles is simply becomes part of the overall analysis and does not require separate consideration or a separate step.

In the Foerster matter, the Michigan Court of Appeals found that the lower court did find that there was an established custodial environment with both parties, that the lower court performed the proper best-interests analysis and there was clear and convincing evidence to grant the mother sole physical custody and consequently allow the move to New Mexico.

It appears the decision was proper because the court cited the following as evidence that it considered when granting sole physical custody: the father brought baseless child abuse allegations against the mother on the eve of trial, he disciplined the child by bringing a hammer into the child's room, smashing the child's belongings, spanking the child repeatedly with a leather belt, spending a significant time on pornographic and dating websites when the mother was pregnant, and a volume of incidents regarding illegal drug use. Given these considerations, it was probably wise to grant the mother sole physical custody.


If a party is planning or considering moving more than 100 miles after a divorce, then it is probably best to address this issue before the divorce or at trial rather than afterward. This should remove some of the additional hurdles that one must face when seeking to relocate more than 100 miles or out of Michigan with the children in a divorce or separation situation.

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