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What Happens When Parents Have Joint Legal Custody and One Wants To Move Out of State?

If parents have joint legal custody and cannot make a decision about an issue, then one of the parties must file a motion with the court, and the judge will decide. It does not appear that there are any “threshold” issues to prove such as the proper cause or change in circumstances that would be required by MCLA 722.27 or Vodvarka v Grasmeyer if the only issue is a parental dispute.

There are two issues that often result in disputes between parents with joint legal custody: moves out of state with the child(ren) and changes in schools. This article discusses moves out of state.

A party can move anywhere he/she wants after a judgment or order is entered if he/she proposes to move without changing the children’s residence—i.e., leaving the children behind. If the parent’s move away without the children would result in less parenting time, then the parenting time order should be amended, and the child support should be adjusted.

The problem develops when a parent proposes to move with the minor child. Traditionally, Michigan permitted parents to move freely within the State of Michigan and without a court order. This caused major problems since a parent would be required to get an order to move 45 minutes from Ann Arbor to Toledo with the children but could move from Ann Arbor to Charlevoix with no order at all.

Prior to the adoption of MCLA 722.31, Michigan had applied the 4-factor test forth in Overall v Overall, 203 Mich App 450, 458, 512 N.W.2d 851 (1994). The test adopted in Overall was initially set forth in D’Onofrio v D’Onofrio, 144 N.J. Super 200, 206-07, 365 A2d 27 (1976), and ultimately called the “D’Onofrio test.” Under the D’Onofrio test, the trial court was required to consider:

(1) whether the prospective move has the capacity to improve the quality of life for both the custodial parent and the child;

(2) whether the move is inspired by the custodial parent's desire to defeat or frustrate visitation by the noncustodial parent and whether the custodial parent is likely to comply with the substitute visitation orders where he or she is no longer subject to the jurisdiction of the courts of this state;

(3) the extent to which the noncustodial parent, in resisting the move, is motivated by the desire to secure a financial advantage in respect of a continuing support obligation; and

(4) the degree to which the court is satisfied that there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parental relationship with the noncustodial parent if removal is allowed.

For years, the D’Onofrio test was applied to interstate moves and not applied to intrastate moves—resulting in the now famous case of Dehring v Dehring, 220 Mich App 163 (1997). In Dehring, a mother moved with the minor children to a home far away but still within the State of Michigan. The father filed a motion for physical custody of the children, which was denied. Father then took an appeal. The Court of Appeals affirmed the trial court in Dehring v Dehring, 220 Mich App 163 (1997), holding as follows:

Former husband petitioned for physical custody of children, which had been awarded to former wife upon parties' divorce. The Alpena Circuit Court, Joseph P. Swallow, J., denied relief, and husband appealed. The Court of Appeals, Bandstra, J., held that: (1) wife's proposed intrastate move was not change in circumstances warranting reanalysis of statutory best interest factors, and (2) trial court's consideration of four-factor test for change in domicile, if erroneous, was harmless.

There was some measure of outrage at this decision since the move obviously impacted the children’s relationship to their father but their best interests were not even considered. What must be remembered, however, is the procedural context in which this decision was made. The father had filed to amend the judgment to award him primary physical custody. This sort of motion would clearly require finding of proper cause or change in circumstances under MCLA 722.27. If, on the other hand, the motion had been filed by the mother to move out of the area with the children or out of the state, then the court should have considered this, standing alone, as a parenting dispute that would not require a threshold showing of change in circumstance or proper cause. (Note: In
Dehring, the mother already had primary physical possession, so the move alone would not have changed the “established custodial environment.” Presumably, that is why the court found that the threshold had not been met for the father’s motion.)

That said, people in Michigan began to note that parents now had a virtual imprimatur from the Court of Appeals to move long distances without court approval if they stayed within the State of Michigan. They would face the D’Onofrio test only if they moved out of state (and after Brown, the D’Onofrio test was embedded within MCLA 722.31).

Over time, the issue was decided by the Michigan Legislature when it adopted MCLA 722.31 and basically put a 100-mile “leash” on parents who have joint legal custody. The statute does not apply to parents without joint legal custody. 

MCLA 722.31 provides a 5-factor test. The first four factors are very similar to the D’Onofrio factors, and the Legislature added a fifth factor for domestic violence:

(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.

After MCLA 722.31 was adopted, Judge Connors in Washtenaw County presided over the now landmark case of Brown v Loveman, 260 Mich App 576 (2004). The mother in that case proposed to move with the minor child out of state, and the Donofrio test was applied because it was a proposed “interstate” move. The Court of Appeals, however, held that the new MCLA 722.31 should have been applied, noting the Legislature’s intent:

In the present case, it appears that the Michigan Legislature intended MCL 722.31(4) to be judicially construed as D'Onofrio is in New Jersey to the extent that the language is the same, but that the removal of the “custodial parent” and “noncustodial parent” language and its replacement with “relocating parent” and “parent” apparently signified our Legislature's intent to make the statute
applicable even in cases where both parents have joint legal and physical custody, and not just where the parent with primary physical custody wants to relocate, changing the minor child's legal residence. Stated another way, the Michigan Legislature apparently did not intend that sole physical custody be a prerequisite to petitioning to change a minor child's legal residence.

There is no authority for the proposition that the parent seeking to relocate the minor child must have sole physical custody. The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Gladych v. New Family Homes, Inc., 468 Mich. 594, 597, 664 N.W.2d 705 (2003). As noted above, the Legislature's change of the wording of  the statute from “custodial parent” and “noncustodial parent” (found in D'Onofrio, supra) to “relocating parent” and “parent” signifies the intention that being the sole physical custodial parent is not a prerequisite to petitioning the trial court for permission to relocate. Once the intention of the Legislature is discovered, it must prevail regardless of any conflicting rule of statutory construction. Green Oak Twp. v. Munzel, 255 Mich.App. 235, 240, 661 N.W.2d 243 (2003). Thus, we find that the Legislature intended that a parent who shares joint legal or physical custody may petition the court to relocate a minor.

Again, the two tests (D’Onofrio and MLCA 722.31) are similar except for the domestic violence factor in MCLA 722.31.

The next issue then involved whether the child’s “best interest” under MCLA 722.23 should have been considered in the initial decision to permit the mother to move out of state. With regard to that issue, the Court of Appeals opined:

We find that the trial court properly determined at the outset that the D'Onofrio factors, now provided in MCL 722.31, were the appropriate inquiry when ruling on defendant's petition for change of domicile, as opposed to the best interest factors that are appropriate to consider in ruling on a request for a change of custody. Because it is possible to have a domicile change that is more than one hundred miles away from the original residence without having a change in the established custodial environment, the trial court did not err in solely applying the D'Onofrio factors to the change of domicile issue.

However, once the trial court granted defendant permission to remove the minor child from the state, and it became clear that defendant's proposed parenting time schedule would effectively result in a change in the child's established custodial environment with both parties, it should have engaged in an analysis of the best interest factors, MCL 722.23, to determine whether defendant could prove, by clear and convincing evidence, that the removal and consequent change in established custodial environment and parenting time was in the child's best interest. The subsequent change of the established custodial environment will be addressed, infra, but this change did not arise until after the trial court had ruled on the change of domicile motion. Because the change of an established custodial environment did not arise until the defendant's proposed parenting time schedule was entered, we find that the trial court properly addressed the domicile change using the D'Onofrio factors.

When a significant change in parenting time or a move out of state would change the child’s “established custodial environment,” then the court must find clear and convincing evidence that the change would be in the child’s best interest. In fact, before asking a court to change the child’s established custodial environment, there is a threshold issue of whether there has been a change in circumstances since the judgment of divorce or last order was entered—or “proper cause” to even consider the change. 

In Vodvarka v Grasmeyer, 259 Mich App 499 (2003), the Court of Appeals held that “in order to establish a ‘change of circumstances,’ a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child's well-being, have materially changed.” Id. at 513. In Vodvarka, the court pointed out that time always produces some alterations in a child's “environment, behavior and well-being,” but that “normal life changes” do not suffice to demonstrate changed circumstances; instead, “there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child.” Id. at 513–514.

The child in Vodvarka was conceived during a “one night stand” in December 2001 or January 2002. The parties then did not have any further contact until after October 22, 2002 when the other filed a paternity complaint through the county prosecutor. The father was served that same day, and on November 4, 2002, the court ordered DNA testing.

After DNA confirmed the father’s paternity, the father signed an acknowledgement of paternity on December 6, 2002. The next day, on December 6, 2002, the court entered an order for support and costs of delivery. That order gave the mother custody with “reasonable visitation” to the father. That same day, the father filed a petition for custody. Then ten days later, the mother filed a motion to dismiss the petition for custody, which the court granted based on lack of proper cause or a change in circumstances between December 5 and December 6.

The court noted the lack of guidance on the standard to be applied, holding: 

In light of these definitions and purposes, we hold that in order to establish a “change of circumstances,” a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child's well-being, have materially changed. Again, not just any change will suffice, for over time there will always be some changes in a child's environment, behavior, and well-being. Instead, the evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an *514 effect on the child. This too will be a determination made on the basis of the facts of each case, with the relevance of the facts presented being gauged by the statutory best interest factors.

Since resolving parenting disputes normally does not require a change the established custodial environment, MCLA 722.27 and the threshold described in Vodvarka do not normally apply in cases of disputes between parents with joint legal custody about joint legal custody decisions such as health care, education, and the like.

With moves out of state, however, there can be a change in the established custodial environment. It may be impossible to continue “shared parenting” in any meaningful way if one parent moves far away from the other parent. In those cases, there are effectively “two stages” to the proceedings. The first stage determines whether the petition met the standard set forth in MCLA 722.31. If so, then the second stage determines whether the move would change the established custodial environment for the child. If so, then MCLA 722.27 requires the petitioner to prove by clear and convincing evidence that the proposed change in custody would serve the child’s best interests under MCLA 722.23.


If parents have joint legal custody and are unable to resolve a major issue related to the child, then the court must resolve the dispute. This requires a “Lombardo” hearing and the issue would be resolved using the best interest test. Normally, if a court is asked repeatedly to resolve parenting disputes, the court should wonder at some point whether the award of joint legal custody is practical and/or serves the child’s best interest.

When it comes to moves more than 100 miles away from where the child was during the prior proceeding, and if the parents have joint legal custody, then the court must apply the factors set forth in MCLA 722.31. If the parent who wishes to move passes that test, then the court must inquire as to whether the move would change the established custodial environment. If so, then the motion to move is treated as a motion to change custody, and the petitioner must prove by clear and convincing evidence that the change in custody will serve the child’s best interest.

Motions to change schools require a Lombardo hearing because they are essential parenting disputes. At that hearing, the court must consider the child’s best interests, but the court need not weight factors that are irrelevant to the decision. Presumably, a motion to change schools would require the court to focus on the quality of the schools at issue, the parents’ respective history of involvement in education, guidance and the like, the child’s preference (if relevant), and the home, school, and community record.

Finally, just as the trial court in Brown v Loveman was required to consider whether the move out of state would change the established custodial environment (after the move standing alone was considered)—the Court of Appeals in the Pierron case did likewise. It considered the change-of-schools request and…then…considered whether the change in schools would change the established custodial environment.

Where the decision would result in a change in the established custodial environment, the petitioner must prove by clear and convincing evidence that this consequent change in the environment serves the child’s best interest.

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