A change in domicile occurs when the custodial parent want to move from their current residence to a residence more than 100 miles or out-of-state. If the move is less than 100 miles away, then the court will treat the matter as a change in parenting time and address transportation issues. Procedurally, the parent wanting to move files a change in custody stating the move is in the child’s bests interests.
In 2001, the Michigan legislature adopted the current law that expanded the court’s jurisdiction over moves by the custodial parent. MCL 722.31 was adopted and commonly referred to as the “100 mile rule”.
Pursuant to MCR 3.211(C)(3), “a parent whose custody or parenting time of a child is governed by [a custody order] shall not change the legal residence of the child except in compliance with … MCL 722.31.” In pertinent part, MCL 722.31 states:
(1) A child whose parental custody is governed by court order has, for the purposes of this section, a legal residence with each parent. Except as otherwise provided in this section, a parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child’s legal residence at the time of the commencement of the action in which the order is issued.
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(4) Before permitting a legal residence change otherwise restricted by subsection (1), the court shall consider each of the following factors, with the child as the primary focus in the court’s deliberations:
(a) Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.
(b) 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.
(c) 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.
(d) 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.
(e) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
When a parent moves for leave to change a child’s domicile, the trial court must consider the request using the following four-part analysis:
First, a trial court must determine whether the moving party has established by a preponderance of the evidence that the factors enumerated in MCL 722.31(4), the so-called D’Onofrio factors, support a motion for a change of domicile. Second, if the factors support a change in domicile, then the trial court must then determine whether an established custodial environment exists. Third, if an established custodial environment exists, the trial court must then determine whether the change of domicile would modify or alter that established custodial environment. Finally, if, and only if, the trial court finds that a change of domicile would modify or alter the child’s established custodial environment must the trial court determine whether the change in domicile would be in the child’s best interests by considering whether the best-interest factors in MCL 722.23 have been established by clear and convincing evidence. [Rains, 301 Mich App at 325 (citation omitted).]
In analyzing a change in domicile case, you must first determine if there is a restriction for the move. MCL 722.31 only applies to judgment that provide for joint legal custody. If the custodial parent has sole legal custody, then the custodial parent can move without restriction. This was the ruling of the court in Spires v Bergman, 276 Mich App 432, 741 NW2d 523 (2007). In Spires, Rita Spires was represented by Christian G Krupp II, of Krupp Law Offices PC in the trial and appellate courts on the matter. As a result, Krupp Law Offices, P.C. has a unique expertise in the field of change in domicile law.
Second, is the move more than 100 miles? The Michigan Court of Appeals recently ruled that the 100 miles is measured by a direct line not by road miles. This is significant especially for Michigan. Large parts of Illinois and Wisconsin are less than 100 miles over Lake Michigan, but more than 100 miles by road.
There have been attempts to place consent in divorce judgments. The court has concluded however that“blanket consent” is not enforceable. See Delamielleure v Belote, 267 Mich App 337, 704 NW2d 746 (2005).
To read the full case analysis see Lecher V Letcher.
If you are facing a change in domicile issue, a good change in domicile attorney is not optional, it is a requirement! Our divorce attorneys can answer your questions with straight talk. Having the right divorce attorney on your side can relieve your stress during this difficult situation. Our attorneys have over 85 years of divorce experience. Our attorneys have extensive change in domicile experience. Typical fees to retain attorney for a change in domicile can range and from 1,500 dollars to as high as 2,500 dollars. Considering the seriousness of this life changing event, it is extremely important to retain the services of an experienced attorney in the area of change in domicile.
Krupp Law Offices P.C. is located in downtown Grand Rapids, Michigan and has the right divorce attorney for you. We represent clients in all change in domicile matters throughout West Michigan.
Call for a free phone consultation. Our office can help.
KRUPP LAW OFFICES PC
161 Ottawa NW Suite 404
Grand Rapids, MI 49503
616-459-6636 or mail@krupplaw.com
CHANGE IN DOMICLE STATUTE
722.31 Legal residence change of child whose parental custody governed by court order.
Sec. 11.
(1) A child whose parental custody is governed by court order has, for the purposes of this section, a legal residence with each parent. Except as otherwise provided in this section, a parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child’s legal residence at the time of the commencement of the action in which the order is issued.
(2) A parent’s change of a child’s legal residence is not restricted by subsection (1) if the other parent consents to, or if the court, after complying with subsection (4), permits, the residence change. This section does not apply if the order governing the child’s custody grants sole legal custody to 1 of the child’s parents.
(3) This section does not apply if, at the time of the commencement of the action in which the custody order is issued, the child’s 2 residences were more than 100 miles apart. This section does not apply if the legal residence change results in the child’s 2 legal residences being closer to each other than before the change.
(4) Before permitting a legal residence change otherwise restricted by subsection (1), the court shall consider each of the following factors, with the child as the primary focus in the court’s deliberations:
(a) Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.
(b) 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.
(c) 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.
(d) 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.
(e) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(5) Each order determining or modifying custody or parenting time of a child shall include a provision stating the parent’s agreement as to how a change in either of the child’s legal residences will be handled. If such a provision is included in the order and a child’s legal residence change is done in compliance with that provision, this section does not apply. If the parents do not agree on such a provision, the court shall include in the order the following provision: “A parent whose custody or parenting time of a child is governed by this order shall not change the legal residence of the child except in compliance with section 11 of the “Child Custody Act of 1970”, 1970 PA 91, MCL 722.31.”.
(6) If this section applies to a change of a child’s legal residence and the parent seeking to change that legal residence needs to seek a safe location from the threat of domestic violence, the parent may move to such a location with the child until the court makes a determination under this section.