The Michigan economy is in trouble. According to the most recent reports issued by the Bureau of Labor Statistics, Michigan has the highest jobless rate in the nation at 10.6 percent. There is little indication that circumstances are likely to improve soon.
As a result of the failing economy, many people are trying to leave the state, seeking greener pastures elsewhere. For parents who share legal and physical custody of their children, attempts at out-of-state relocation can provide unique challenges.
If you want to relocate more than 100 miles, or to another state, you should first consult your child's other parent. If the other parent refuses consent then you must request permission from the court. Your chances for success depend on a variety of factors, but your current custodial arrangement could be the biggest factor.
When the requested relocation does not change the custodial environment, the court will use the D'Onofrio test, a straightforward test for evaluating the merits of the proposed relocation. [D'Onofrio v D'Onofrio, 144 N.J. Super 200, 206-07, 365 A2d 27 (1976), and now codified in MCLA § 722.31 .] When the requested relocation does change the custodial environment, the court has more stringent standards and will require a custody hearing to determine whether the relocation is in the child's best interests.
Changing Legal Residence - Sole Physical Custody
If you are a parent with sole physical custody and the non-custodial parent has traditional every other weekend parenting time, your request to relocate will not affect your custodial environment. As a result, the courts will not be required to conduct a custody hearing and will instead rely on the D'Onofrio test, which consider these factors:
- Does the change have the capacity to improve the quality of life for both the relocating parent and child? The Michigan Court of Appeals has recognized that a parent's increased earning potential may improve a child's quality of life, which is promising for parents who are hoping to leave Michigan to pursue better job opportunities.
- What effect will the relocation have on the child's ability to see the nonrelocating parent? Moving out of state will almost always require a change to the parenting time schedule, and this alone will not prevent relocation. The new schedule does not have to equal the prior schedule in all respects, but it does have to provide opportunities to preserve and foster the parent-child relationship.
- Does either parent have improper motivation in seeking or opposing the relocation? If it appears that the relocating parent is simply attempting to impede the parenting time arrangement, this will weigh against relocation. If it appears that the parent opposing the relocation is doing so to decrease his or her child support obligation, the court will give less weight to these objections.
Changing Legal Residence - Shared Custody
Rather than giving one parent sole physical custody and the other visitation time, the recent trend following divorce or separation is for parents to share physical custody of their children. Our current societal pressures often demand that both parents earn an income, instead of having one primary, stay-at-home caregiver. Parent schedules often dictate parenting time and a shared custodial relationship.
In these circumstances, a child is likely to have a custodial relationship with each parent - meaning the parent offers guidance, parental comfort, life necessities, and discipline. To determine whether a custodial environment exists with regard to each parent, the court will look at the specific facts and circumstances, over a period of six months.
If the court determines that both parents have had integral involvement with the children, then a custodial environment exists with each parent. When the child has an established custodial environment with the parent who is staying, the court must also evaluate the child's best interest, rather than simply relying on the D'Onofrio test.
The court will evaluate the planned relocation, considering 12 custody factors. These factors range from the love and affection between the child and each parent to the health of the parents. Although there are specific criteria established for this analysis, the court can ultimately consider any factor deemed relevant to the custody dispute. The court will only grant permission to move a child out of state if the parent attempting to relocate clearly demonstrates that the relocation is in the child's best interest.
Petitioning the court to move out of state with a child can be a difficult process. Michigan has high regard for parent-child relationships, and will not interfere with this relationship without good cause. When two parents are each very involved in a child's life, the state is reluctant to allow one parent to take action that will limit the other's involvement.
However, the courts are also realistic about the current economic climate in the state. When parents can provide legitimate reasons for leaving, the courts are willing to make pragmatic choices.
Article provided by Timothy R. Ash & Associates, PC.