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Changing Domicile

Moving Away with the Minor Child(ren)

Most divorce judgments and many support orders and orders of filliation have a paragraph in them that tells parents they must seek the court's permission before they can move out of state with the minor child or children of the Parties or move away more than 100 miles from the child's legal residence at the time of thr commencement of the action in which the order is issued. This applies to a parent who has primary physical custody, and would apply to both parents if they have shared physical custody.

The court must consider the following factors in deciding whether to grant permission for a parent to remove a minor child from the state:

1. Whether the move could improve the quality of life for both the custodial parent and the child

2. Whether the custodial parent is trying to prevent visitation by the non-custodial parent, and whether the custodial parent would be likely to comply with a new visitation schedule that would be needed because of a move

3. Whether the non-custodial parent is opposing the move because it would be to his or her advantage in paying support

4. Whether the court is satisfied that there will be an actual opportunity for visitation, in place of the every-other week pattern, that makes it possible to preserve and foster the child's relationship with the non-custodial parent, if the court allowed the move.

The factors that the court must consider in change of domicile cases were set forth in D'Onofrio v D'Onofrio, 144 NJ Super 200, 365 A2d 27 (1976), aff'd, 144 NJ Super 352, 365 A2d 716 (1976). The Michigan Court of Appeals adopted this test for change of domicile cases in Overall v Overall, 203 Mich App 450, 512 NW2d 851 (1994).

A custodial parent wishing to move from the state with a minor child must file a motion for change of domicile with the court. The person's attorney or the person him or herself may file such a motion. The other parent must be notified of the date and time for a hearing on the motion.

The State Court Administration Office (SCAO) does not have an in pro per motion form for Friend of the Court clients to use, if they wish to file a motion to change domicile on their own. However, you may use the "Motion Regarding Custody" form that you can obtain from our office for these purposes. However, if this form will be used, you must clearly indicate on the "Motion Regarding Custody" form that a change of domicile is what is being requested.

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