The following was forwarded to the MACM Board by MJI Program Manager, Mr. Peter Stathakis....
Custody and Change in Residence (MCL 722.31)
Delamielleure v Belote, Court of Appeals Docket No. 254593, July 12, 2005, Published
The parties' divorce judgment included a provision stating the child's domicile shall be the defendant-wife's state of residence and the parties expressly waived the requirement that they comply with MCL 722.31, the "100-mile rule," regarding changes in residence. When defendant and her new husband informed the plaintiff they were going to move to Arkansas, he objected and filed a motion. The trial court granted the motion and struck the change of domicile provision from the judgment. After a hearing on defendant's request to change domicile, the trial court denied the request.
The Court of Appeals affirmed the trial court's decision, finding that the divorce judgment fails to comply with the statutory restriction on changing a child's residence found in MCL 722.31. First, the judgment states that the parties "waive" the requirement to comply with the statute. There is nothing in the statute that authorizes parties to waive compliance. Second, the parties' blanket consent to any change of residence is also contrary to the provisions of the statute, which requires the other parent to consent to "the residence change." Rather, the only consent that can be granted under the statute is consent to a specific, identifiable change of residence.
Sehlke v Vandermass, Court of Appeals, Docket No. 262346, July 27, 2005, Published
Plaintiff filed a petition to change custody based on Defendant's move approximately 140 miles away and the resulting reduction in plaintiff's parenting time. Plaintiff alleged that the change in residence was without his consent as required by the order and contrary to the statute, MCL 722.31. After a hearing, the trial court determined that defendant's unauthorized move constituted a change in circumstances and that a change in custody was in the child's best interests.
The Court of Appeals affirmed the trial court's decision and held that an unauthorized change in legal residence in excess of one hundred miles constitutes a change in circumstances sufficient to revisit custody. This decision (and MCL 722.31) effectively overrules Dehring v Dehring, 220 Mich App 163 (1996), which held an intrastate change of domicile does not constitute a sufficient change of circumstance to reopen the issue of custody. In Dehring, the paramount policy consideration was the custodial parent's ability to move. However, when the legislature enacted MCL 722.31, it determined that was no longer the paramount policy consideration and imposed restrictions on a parent's ability to change a child's residence more than 100 miles away.
The Court of Appeals noted that although an unauthorized change in residence is sufficient change in circumstances, the trial court must still determine whether a change in custody is in the child's best interests. Here, the Court agreed with defendant that the matter was decided prematurely without an opportunity for a Friend of the Court review or a separate evidentiary hearing after the determination there was a change in circumstance. The Court reversed the order to change custody and remanded for an evidentiary hearing.
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