One issue that I see frequently these days as a divorce lawyer (family law attorney) in the Bloomfield area of Oakland County, Michigan, relates to a parent’s need to move out of state with the children to obtain employment after a divorce.

The Issue    

What will the court look at and analyze when a parent seeks to move more than one-hundred miles from their current residence or out of state with the children?

The Answer

A recent case where the Michigan Court of Appeals affirmed the Oakland County Family Court on March 6, 2012 provided a very good example of how a court will analyze such an issue.  In the case, the parties had joint legal custody and the father had physical custody.  The mother had parenting time every other weekend, two weekdays a week, alternate weeks in the summer and alternating holidays.  The father experienced financial difficulty in Michigan and received a job offer in North Carolina earning $100,000 per year.  He filed for a motion for a change of domicile and the court granted his motion.

When one is seeking permission to move more than 100 miles the family court must consider the following factors, with the child as the primary focus: (1) whether the change has the capacity to improve the quality of life for both the child and the relocating parent; (2) the degree to which each parent has complied with and used their parenting time and whether the moving parent is seeking to frustrate the other’s parenting time; (3) the possibility of modifying the parenting time schedule to provide an adequate basis for preserving and fostering the relationship between the child and each parent and whether each is likely to comply; (4) the extent to which the parent opposing the move is seeking a financial advantage and (5) domestic violence.

The party seeking the move has the burden of establishing by a preponderance of the evidence that the change in domicile is warranted.  Further, if the court finds in favor of allowing the move, it must then address whether the change of domicile will affect an established custodial environment with the other parent.  If so, then the moving party must also prove by clear and convincing evidence that the custodial change is in the child’s best interests as defined by statute in Michigan.

In this case, the court found with respect to factor (1) the quality of life, that a substantial increase in income (the father would quintuple his income) would elevate the quality of life for the relocating parent and the children supported the finding that the father had met this factor.  In addition, the court considered the presence of extended family in North Carolina, the father’s nice new house, the quality of the new town and the schools.  The court contrasted this against the mother and her new husband who together earned approximately $30,000 per year while the new husband had other support obligations as well.

With regards to factor (3) preserving and fostering the parental relationship; the court stated that one must start with the premise that weekly visitation is not possible when parents are separated by state borders.  The new visitation plan need not be equal, it needs only to provide a real opportunity to preserve and foster the relationship.  The court stated that extended periods of parenting time and the use of technology could diminish the effect of separation.  It also noted that the father was willing to accept any reasonable parenting-time plan and encouraged the boys to call their mother daily.  It contrasted this with the mother who demonstrated her disdain for the father throughout the hearing, continued to speak negatively about the father in front of the children, and there was some history of domestic violence by mother against the father.

The court then determined that the move would result in a change in the established custodial environment and went on to consider whether the father could show by clear and convincing evidence that it would be in the best interests of the children for him to maintain custody after the move.

I will not reiterate all of the factors here, but with respect to the relevant factors; the Oakland County Family Court noted that with respect to love affection and guidance, the father provided the children guidance through counseling while the mother referred to the therapy as a “joke”.  The court found that the father would be better able to provide for the children’s material needs given his new income in contrast with the mother’s lack of income and her husband’s duty to support other children.  The court found that the mother was unwilling to help maintain continuity for the children by refusing to sign a loan modification agreement for the father’s home which would have allowed him to keep the children in the marital home even though it would not cost her any money.  Finally, the court found that the permanence of the custodial home did not favor either party as the marital home was lost to foreclosure and that the children would have to change schools regardless of which party was granted custody.

Summation

Change of domicile cases are difficult for the court as they often require two separate analyses and one parent always comes out on the short end.  In this case, the mother made it easier for the court by acting in ways that were contrary to good co-parenting while the father appeared to at least attempt to co-parent effectively.  In addition, it appears that the court admonished the mother for her outbursts during the trial and admonished her attorney for being unprepared and for causing delays.  One must have an attorney that can advise the client to avoid acting inappropriately and the attorney must always be well prepared in family law cases.