MICHIGAN CHILD CUSTODY LAW

When a Divorced Parent Wants to Move Out-of-State (Change of Domicile)

“I just wanted to let you know I’m moving out of state, and I plan to take the kids with me.”  These words are among the most difficult a divorced parent can hear. On the one hand, the parent who wishes to move out of state may want (or need) to do so due to employment or to pursue a new relationship.  On the other, the parent who remains behind faces decreased time with his or her children.  These situations rarely resolve smoothly, and it is important to know that without a family court judge’s approval, moving the children out of state is generally never allowed in Michigan.

Change of Domicile Considered by Michigan Court of Appeals

Under the child custody act, a parent cannot move the minor children’s residence out-of-state, or more than 100-miles, without permission of the family court. Going to Court to ask the judge to allow moving the minor child out-of-state, or more than 100-miles, is legally called “petitioning” for a “Change of Domicile.”

In one example of this, Stephani Yachcik (a resident of Alpena, Michigan), seven years after getting divorced, fell in love and married a man who lived and worked in Pennsylvania. So, Ms. Yachcik requested “leave” (permission) from the Alpena County Family Court to take her son to live with her and her new husband in Pennsylvania.

Ms. Yachcik offered the child’s father parenting time of 10 weeks in the summer, plus during both Thanksgiving and Christmas breaks.  In her motion to the Court, she suggested that her child would have a better life if he were allowed to move to Pennsylvania with her.  She testified that she had a job waiting for her in Pennsylvania, and that her son had already been admitted to a local private school.  She further stated that she would have more resources to allocate to her son, because of the savings she would realize in not having to maintain two separate households and the costs of travel between the two.

However, the court was not swayed by her arguments, and denied her motion to allow her to move the child out of state. This is not at all uncommon. Ms. Yachcik was then in the position of having to decide whether to remain in Michigan and travel to Pennsylvania to see her new husband, or to move to Pennsylvania and travel to Michigan to see her son.

Change of Domicile Factors Michigan Courts Consider When a Divorced Parent Wants to Move Out-of-State

The Michigan court relied on several “statutory” factors (laws) when coming to their decision in the Yachcik “change of domicile” case. In denying the mother’s petition to move the child, the Court  looked at:

• whether the relocation will improve the quality of life for both child and parent;
• the degree to which each parent exercises their time under a parenting schedule and the degree to which the relocating parent is moving to thwart the other’s parenting time;
• if the move is permitted, the degree to which the parenting schedule can be modified to preserve and foster a relationship between the child and each parent; and
• the degree to which the non-relocating parent is motivated by a desire to minimize his or her child support obligation.

Upon review of these factors, the Michigan judge determined that while Ms. Yachcik’s life would be improved by moving to Pennsylvania, it was less clear that her son’s life would be improved by the move. For instance, the boy had no family or friends in Pennsylvania except his mother, and would leave behind many family members and friends in Alpena – including his father with whom he had a good relationship.

Court of Appeals Upheld the Family Court’s Decision When a Divorced Parent Wants to Move Out-of-State

Dissatisfied with the Court’s denial of her petition to move the child, Ms. Yachcik appealed the ruling to the Court of Appeals.

The Court of Appeals “affirmed” (upheld) the first court’s ruling denying Ms. Yachcik’s request. The court of appeals concurred that Ms. Yachcik’s primary motivation for the move was to take care of her own needs first by marrying someone that lived out-of-state.  The court pointed out that the primary focus for family courts, however, must always be the best interests of the child.

And this is the important take-away from this case and similar situations. The Court will always put the best interest of the children first – even when either (or both) parent does not.

Attorney Starla Zehr Can Help When a Divorced Parent Wants to Move Out-of-State

If you are considering “changing domicile” – or if your ex-spouse is attempting to move your minor child –  it is important to seek legal counsel from an experienced divorce attorney as soon as possible.  Attorney Starla Zehr, a family law specialist, is available to assist you.  Call our law firm to schedule a free consultation to assess your options.