On August 21, 2007, in Spires v Bergman, the Michigan Court of Appeals decided in an opinion for publication that where a parent has sole legal custody of the child at the time of the proceedings, the so-called “100-Mile Rule” does not govern that parent’s request to change the child’s domicile. As a result, the trial court properly declined to consider the factors of MCL 722.31(4).
In deciding this case and in interpreting the statute, the COA said that when the Legislature codified Michigan’s usage of the D’Onofrio factors, it concurrently chose to expressly exempt custody cases in which the relocating parent has sole legal custody.
The father in Spires argued that even if the statute did not apply, the trial court was required by common law to consider the D’Onofrio factors  in all change-of-domicile matters, even those where one parent had sole legal custody. The COA rejected this argument, holding that the plain language of MCL 722.31(2) has altered this practice. Thus, the statute exclusively controls when and whether a court is required to use of the D’Onofrio factors in change-of-domicile cases. Since the statute expressly exempts cases where one parent has sole legal custody from the D’Onofrio factor consideration.
 The so-called D’Onofrio factors or test were adopted in Michigan case law in 1984 from the D’onofrio v D’Onofrio case that had earlier been decided in New Jersey. Under the D'Onofrio test, the trial court must 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 non-custodial 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 non-custodial 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 non-custodial parent if removal is allowed. Subsequently, the Michigan Legislature codified this test (made it law) and added one more factor: “Domestic violence, regardless of whether the violence was directed against or witnessed by the child.”
The Spires case has generated some good commentary on the State Bar of Michigan Family Law Listserv, including the following:
From Scott Bassett, one of Michigan’s stellar appellate lawyers:
I recall well the debate surrounding enactment of the so-called "100-mile rule" in MCL 722.31. Proponents (of which I was one) felt that the legislation was needed because the court rule, MCR 3.211(C)(1), applied only to interstate relocations. Relocations over great distances within Michigan could also have a significant impact on the relationship between the child and the noncustodial parent. We felt such relocations should require court review similar to the D'Onofrio test applied to out-of-state moves.
One thing I am certain was not intended by the legislation's sponsors or proponents was the ruling by the Court of Appeals in Spires v Bergman. That ruling essentially repeals the D'Onofrio-based test for interstate moves where the left-behind parent does not have joint legal custody. The panel "reasoned" that if the Legislature had intended to continue the practice of applying a D'Onofrio-based test to interstate relocations, it would not have limited the new statute to cases of joint legal custody. From what I recall of the debate, everyone assumed (and desired) that the D'Onofrio-based test under the court rule remain in place for interstate moves irrespective of the legal custody arrangement. We were trying to solve an intrastate problem, not reduce (to zero) the standard for interstate moves.
The result is that one may take children from Michigan to Texas (as was the case in Spires) without an evidentiary hearing or any analysis of the D'Onofrio or MCL 722.31(4) factors if the non-custodial parent does not have joint legal custody - no matter how extensive his/her parenting time may have been.
Yet, a parent could not move children from Mt. Clemens to Jackson (which I assume is more than 100 miles, but I did not measure) without a full evidentiary hearing if there is joint legal custody - even where the non-custodial parent has not exercised substantial parenting time.
This seems wrong. Scott Bassett
From James Ryan, a frequent and erudite commentator:
The court alleges that it is interpreting the plain language of the statute. Hogwash. But this isn’t the only decision that has – in my mind – gotten all this wrong.
It is quite possible – and appropriate, I think – to recognize different concepts at play here. For instance:
legal residence, with restrictions on intrastate moves more than 100 miles, for which see MCL 722.31, with its list of factors (different from, but similar to, D’Onofrio factors);
domicile, which gives Michigan its authority under the UCCJEA to decide custody issues, and which is preserved until lost for various reasons, one of which can be granting permission to leave the state; the parties get notice of this with a Judgment provision per MCR 3.211(C)(1).
How the court goes from a statute concerned only with a child’s “legal residence” to saying that it overrides the court rule and all domicile decisions is beyond my power to explain.
/s/ Jim Ryan, Plymouth
From Jonathan Warshay, a former Friend of the Court staff attorney:
My sisters and brothers:
The opinion cites three things in the court rule:
1) domicile cannot be changed out of state without court's permission
2) CP must notify FOC of address change, AND (caps for emphasis)
3) compliance with MCL 722.31
Those are three separate requirements. Nowhere did anyone ever say that the 100 mile superseded the Michigan domicile requirement. As Scott pointed out, they have different effects. They also have different rationales. The Michigan domicile requirement is to allow the court to consider a move of a child outside its jurisdiction. The 100 mile rule considers the effect of a move away from the other parent. Scott's comments are right on point. (Jim's, too.)
I am curious what was argued in the briefs. Did the defendant's attorney fail to make these points prominent and clear to the COA, or did the COA decide that these points were not relevant?
As for the plain meaning of the rule, the Michigan domicile provision does not consider whether a party has sole custody. It says that the residence or domicile cannot be changed without permission of the court. That seems plain enough. Furthermore, the Supreme Court revised the rule to consider the new statute, MCL 722.31. Had the Supreme Court wanted to change the the Michigan domicile requirement, it certainly could have revised the rule to make it clear. Because the Supreme Court did not, there is no evidence that the result in this case is what was intended. While the staff comment to court rule changes is not authoritative, it did not even discuss the addition of the section dealing with MCL 722.31.
The FOC Bureau of SCAO (a division of the SCAO) also considered that the two parts of this rule apply differently, as is set forth in the FOC Manual:
Was the Family Law Section asked to file a brief in this situation?
I think the COA needs attorneys with specialization in family law in its pre-hearing division to brief the cases. Family law is different from contracts and the analogies do not always work. Family law came from equity. Equity is required because of the children and family relationships. Equity can be obscure. (It was one of my favorite classes in law school, thanks to Clark Johnson.)
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