Relocating your minor child can be a difficult process. This might be a difficult, emotional time for you and your family. Lots of us parents worry how this might affect the relationship with the children.
Our Oakland County Family Law team at The Kronzek Firm has decades of experience helping families with divorce, moving and the change of legal residence of their child. Contact us online or call today at 248-479-6200 to talk to one of our expert family law attorneys.
The Five-Factor Test for Relocating Outside of Michigan
In 2001, a statute was created in Michigan regarding the relocation of a child. The statute about moving your children closely follows a case that originated in another state, D’Onofrio v. D’Onofrio. There were four factors used by the D’Onofrio court to decide whether to grant a parent’s request to move their child out of state. These 4 factors were adopted by the Michigan legislature but they also added a 5th factor regarding domestic violence. Michigan’s five factors for change of domicile are described below:
- Whether the relocation is in the best interest of both the child and the parent that is relocating. Will it improve the quality of life of both the parent and the child?
- Whether each parent has complied with and utilized his/her parenting time with the child. Is the parent’s goal of relocation to frustrate the parenting time schedule?
- Whether or not each of the parents will still be able to preserve and foster a healthy relationship with the child, given the relocation. Will relocation allow for modifications of the parenting time schedule and, if it does, will both parents likely comply to the modifications?
- Whether the parent opposing the legal residence change is driven by financial advantage. Is this parent trying to secure a support obligation?
- The safety of the child: will relocating the child put them in a situation of domestic violence? Even if the child isn’t the victim of domestic violence, will they be in a situation where they might witness domestic violence?
Note that these five factors of relocation analysis are different that the 12 factors used by the courts for changing child custody. However, note that if the proposed move will change the child’s established custodial environment, Michigan courts have to look at the 12 custody factors in addition to the 5 change of domicile factors.
One of the big differences between the two sets of factors is the first factor. This factor states that the move should be in the best interest of the both the child and the parent. Michigan courts have since clarified that the emphasis is on the child but that the parent’s best interest is also considered. When changing child custody, however, the “best interest” analysis focuses only on the best interest of the child.
You should also 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 looking to relocate the child does not have to be the primary custodial parent. Instead, the parent only has to share joint legal or physical custody over the child to be able to request a change of domicile for the child.
Relocating within the state of Michigan (the 100-Mile Rule)
If the relocating parent is moving inside Michigan, the rules are different. Specifically, there is a provision that 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.”
In other words, the parent seeking a new residence cannot move their child more than 100 miles from the place of original custody, if this move is occurring within Michigan. The 100 miles is measured “as the crow flies” or in a straight line. In many cases, this allows the non-moving parent protection from separation from their child. However, child custody and relocation issues can get complicated and it is very important that you get experienced family law attorneys to assist you in this process.
Every child custody case is unique, which means that the statutes written may not perfectly cover your own situation. To have the best chance of maintaining the relationship you have with your child, you should hire an expert attorney to guide you.
In Michigan, our Michigan Compiled Laws 750.350a governs parental kidnapping 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, a parental kidnapping conviction can result in misdemeanor or felony charges, and restitution of up to $2,000.
The Federal Parental Kidnapping Prevention Act (https://www.law.cornell.edu/uscode/text/28/1738A was passed in 1980). The federal law trumps any conflicting state law. It states that it is illegal for a parent to remove their children with the purpose of keeping them from the other parent, guardian, or adoptive parent. This Act allows for the use of the use of the Federal Parental Locator Service (FPLS). The service helps find kidnapped children and enforce custody orders.
The Office of Child Support Enforcement implements the FPLS using two databases: (1) the National Director of New Hires and (2) the Federal Case Registry. The first database tracks parental employment information and the latter follows child support cases.
The problem becomes that much more difficult if the child has been abducted to a foreign country. Fortunately, The Hague Convention on the Civil Aspects of International Child Abduction of 1980 comes into play. This is an international treaty signed by 98 different countries. Every country that signs it agrees to help facilitate a quick return of the abducted child to his/her home country.
This treaty is only enforceable in the countries that have signed it; however, the treaty is not the only way to remedy child abduction. The United States is a signed of the Hague Convention Treaty and the family law attorneys at The Kronzek Firm have litigated these international cases in both state and federal courts in Michigan. We have co-counseled with lawyers in various European nations during custody battles here and abroad.
There are steps that a parent can take to ensure the safety of their child before an abduction ever occurs. For instance, a parent can sign up for the Children’s Passport Issuance Alert System. This allows parents to register their children with the Passport Lookout System. This system alerts the parent whenever there is an attempt to submit an application for a U. S. passport for their child.
The parent will be alerted at that time and can object the passport application. When the parent objects, certain U.S. agencies will intervene. This can be a helpful system when a parent doesn’t have custody of their child and fears that the other parent might try to flee the country with the child.
Relocation and Change of Domicile Attorneys
If you are considering relocation, or fear that your child’s other parent might be contemplating relocation, it is important that you do so within the confines of the law. This will likely mean that you will need to hire an expert attorney to be able to guide you on how to relocate legally.
Relocation can be a difficult process, both legally and emotionally, so it is important to move through it efficiently and with an experienced guide. Removing your child from their home state or city comes with hefty penalties if it isn’t done properly. Our Oakland County Family Law team has decades of experience litigating “move away” cases here in Michigan, and can assist you in matters involving change of domicile, child custody, parenting time, and more!
Call us Today! We offer phone consultations and in-person meetings during or after business hours. Our office is located at 30300 Northwestern Highway. That’s located in the Gem Building near 13 Mile and Northwestern. Office hours are by appointment only.