Case law deciding motions to change a child’s legal residence “interchangeably describe these motions as motions for a change of domicile.”[1] The supreme court criticized this practice in Grange, noting that the terms have distinct meanings, and that MCL 722.31 (the change of residence) expressly uses the term residence.[2] The Grange court clarified that although a child may have multiple residences, he or she may only have one domicile. In the case of divorced parents, the child’s domicile is with the parent who has sole or primary physical custody under the custody order (unless otherwise stated), regardless of whether the parties have joint legal custody. [3]
Change of Residence Factors
Before permitting a legal residence change otherwise restricted by the 100-mile rule, the trial court must consider five factors “with the child as the primary focus”:
(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 for the child and each parent; and whether each is likely to comply.
(d) The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage in a support obligation.
(e) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
[4]
However, the statute does not apply if, at the time of commencement of the action, the parties’ residences were already more than 100 miles away.[5]
Burdens of Proof
Even if the statute did apply, a court deciding a change of legal residence motion should first determine whether the movant has shown by a preponderance of the evidence that the change is warranted based on the above factors.[6] If the movant meets this burden, the court must decide if an established custodial environment exists.[7]. If the court finds that there is an established custodial environment, the court must next decide whether the change of residence would alter that environment.[8] If the residence change will alter the established custodial environment, the movant must show by clear and convincing evidence that the move “is in the child’s best interest.”[9]
If a move requires a modification of parenting time that results in a change in the children's custodial environment, then the court must consider the best-interest factors set forth in MCL 722.23 to determine whether the moving party proved by clear and convincing evidence that the move and consequent change in the established custodial environment and parenting time is in the children's best interests.[10]
[1] Grange Ins Co v Lawrence, 494 Mich 475, 507, 835 NW2d 363 (2013).
[2] See 494 Mich at 494–512.
[3] Id.
[4] MCL 722.31(4).
[5] MCL 722.31(2).
[6] Rains v Rains, 301 Mich App 313, 326–327, 836 NW2d 709 (2013).
[7] Id.
[8] Id.
[9] Id.
[10] Rittershaus v Rittershaus, 273 Mich App 462, 465, 730 NW2d 262 (2007).