Changing the legal residence of a child is a touchy subject for any parent. Parents often worry that their relationship with their child can suffer, and that they could grow apart. Due to our decades of experience practicing family law, our Oakland County Family Law team understands the concerns that can arise in relocation or change of domicile cases. Contact us online or call 248-306-4004 to speak with one of our experienced Oakland County Family Law Attorneys. What follows are some helpful guidelines that can assist parents facing change of domicile.
Relocating Outside of Michigan
In Michigan, relocation is governed by a statute that closely follows the 2001 case, D’Onofrio v. D’Onofrio. The Michigan legislature adopted five factors used by the D’Onofrio Court to determine if relocation was proper. These factors, which are listed below, apply only if the moving parent seeks to move out-of-state.
The Five-Factor Test and Out-of-State Move Motions:
When facing a motion for moving a child’s residence outside of the State of Michigan, a judge of the Oakland County Family Court Division will consider the following five factors: (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.
Please note that the relocation analysis used by Michigan courts is different from the factors used in changing child custody. While the first factor (listed above) does somewhat account for whether relocation serves the child’s best interest, it also assesses the moving parent’s best interest, which distinguishes it from the child custody “best interest” analysis. It is also important to note that Michigan courts have determined that the Michigan legislature “intended that a parent who shares joint legal or physical custody may petition the court to relocate a minor.” This means that the parent seeking to relocate the child does not have to be a custodial parent. Rather, the moving parent can share custody (legal or physical) with the non-moving parent and still seek to relocate the child.
Relocating within Michigan (The 100-Mile Rule)
Relocating a child within Michigan involves a different provision. This provision states that “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.” This means that where the moving parent seeks to move the child within Michigan can be no further than 100 miles from where the child lived when the court determined custody. Although this provision seems to issue the non-moving parent secure protection from being separated from the child, parents can make critical mistakes when attempting to handle relocation issues alone. It is vital, for the sake of the parent-child relationship, that parents acquire legal assistance before addressing issues regarding children. The statutes addressing relocation of children attempt to address many possible scenarios, but every case is unique and requires the diligence, experience, and skill of a seasoned Family Law attorney.
MCL 750.350a governs parental kidnapping in Michigan and provides that: “an adoptive or natural parent of a child shall not take that child, or retain that child for more than 24 hours, with the intent to detain or conceal the child from any other parent or legal guardian of the child who has custody or parenting time rights under a lawful court order at the time of the taking or retention, or from the person or persons who have adopted the child, or from any other person having lawful charge of the child at the time of the taking or retention.” In Michigan, parental kidnapping can result in felony or misdemeanor charges. It can also result in restitution in the amount of $2,000. The federal Parental Kidnapping Prevention Act facilitates the prosecution of parents who remove their children with the purpose of keeping them from the other parent, guardian, or adoptive parent. It authorizes the use of the Federal Parental Locator Service (FPLS), which assists in the apprehension of kidnapped children as well as the enforcement of custody orders. The FPLS is a location system implemented by the Office of Child Support Enforcement and consists of two databases to help locate kidnapped children: (1) the National Director of New Hires and (2) the Federal Case Registry. These databases track parental employment information and child support cases respectively. For international child abduction cases, the Hague Convention on the Civil Aspects of International Child Abduction of 1981 provides parents with remedies for retrieving their children. While the treaty is enforceable in 87 countries, it has no bearing over those countries who are not signatories of the treaty. Fortunately, there are other preventative measures that parents can take to avoid international child abduction all together. For example, the Children’s Passport Issuance Alert System allows parents to register their children with the Passport Lookout system, which generates alerts when someone attempts to apply for a passport for the child. Once the alert is submitted, if the parent objects to the issuance of the passport, certain U.S. agencies intervene. The Passport Issuance Alert System is helpful to parents facing custody issues, because it alerts parents to the possibility that someone is planning to take their child out of the country.
Expert Change of Domicile Attorneys
If you are seeking to relocate or fear that your child’s other parent may do so, do not attempt to address this issue without legal assistance. Relocation law can be tricky for either party; for the parent seeking to relocate or for the parent who intends to object to relocation. Most importantly, if you are contemplating relocating, it is imperative that you do so within the confines of the law. The penalties for removing a child from his of her home state or city can be costly. There are ways to navigate this body of law, and our Oakland County Family Law team can assist you with any issue involving change of domicile, child custody, or parenting time.
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