Michigan ranks at the top of the list of states hardest hit by the recession. With the ailing housing market and high unemployment rates, some are finding it desirable if not necessary to leave the state and start fresh somewhere else.
While the majority of people can simply pack up their bags and leave, this is not the case for parents who are separated or divorced and share custody of their children. In these situations, the relocating parent may need to obtain the other parent's permission to move, and is almost always required to secure court approval. Whether this process will be simple or difficult depends largely on the type of custody arrangement the parent wishing to relocate has and the reasons motivating the move.
The 100-Mile Rule
The statutory rule in Michigan is that a parent may not change the child's legal residence by more than 100 miles without the other parent's consent or the permission of the court who entered the original custody order. MCL 722.31(1). This section does not apply if the order governing the child's custody grants sole legal custody to one of the child's parents. If the parties share joint legal custody, and the other parent does not grant permission for the move, the relocating party must petition the court for approval to move. Spires v. Bergman, 276 Mich.App. 432, 439, 741 N.W.2d 523 (2007).
Approval of the Court: the Statutory Requirement
Michigan statute provides several criteria to be considered when a court contemplates a change of domicile of over 100 miles, including the following:
- Whether the proposed move has the capacity to improve not only the relocating parent's life, but also the child's life
- What are the motivations of the parent seeking the move — is the relocating parent trying to frustrate or defeat the current parenting time schedule?
- Whether it is possible to create a new parenting time schedule that will preserve and foster the child's relationship with the other parent
- What are the motivations of the parent opposing the move — is the parent trying to gain a more financially favorable child support obligation in exchange for consenting to the move
- Whether the proposed move is a consequence of an act of domestic violence
Thus, the plain unambiguous language of the statute provides that a parent with sole legal custody is not restricted in the same manner as a parent with joint legal custody. Parents with joint legal custody must obtain consent from the other parent, or permission from the trial court after a review of the above factors, before moving a child more than 100 miles. Neither consent nor consideration of the factors is necessary when a parent has sole legal custody. Spires, supra at 437-438, 741 N.W.2d 523.
Approval of the Court: Court Rule Requirement
A relocating parent's ability to move is also restricted by court rule, which explicitly states:
A judgment or order awarding custody of a minor must provide that:
- the domicile or residence of the minor may not be moved from Michigan without the approval of the judge who awarded custody or the judge's successor,
- the person awarded custody must promptly notify the friend of the court in writing when the minor is moved to another address, and
- a parent whose custody or parenting time of a child is governed by the order shall not change the legal residence of the child except in compliance with section 11 of the Child Custody Act, MCL 722.31.
At first glance, it would appear that the provisions of MCL 722.31 and MCR 3.211(C) conflict. They do not. Simply stated, when a parent with sole legal custody desires to relocate, he or she must first obtain the trial court's approval, but the factors set forth in D'Onofrio v. D'Onofrio, 144 N.J.Super. 200, 206-207, 365 A.2d 27 (1976), and codified in MCL 722.31(4) (see above) do not apply to the request. Brausch v. Brausch, 283 Mich App 339, 348-350, 770 N.W.2d 77 (2009).
When the Relocation Effectively Changes the Custodial Environment
In cases where the parents share joint legal custody, the procedure for gaining court approval for a move is not nearly as straightforward as it is in cases of sole legal custody. The reason for this is because the parents each have an established custodial relationship with the child; each parent is actively involved in raising the child and providing guidance, comfort and basic necessities. Accordingly, if one of the parents moves to another state with the child, the other parent's ability to see the child on a regular basis is going to be limited.
Once a trial court grants permission for the relocating parent to remove the minor child from the state, and it appears that the move will change the established custodial environment, the court is required to analyze the best interest factors set forth in MCL 722.23. to determine whether the relocating parent can prove, by the proper burden of proof, that the removal and consequent change in established custodial environment and parenting time is in the child[ren]'s best interest. Rittershaus v. Rittershaus, 273 Mich App 462, 470, 730 N.W.2d 262, 267 (2007). Some of these factors include:
- The love, affection and other emotional ties existing between the parents and the child
- The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity
- The permanence as a family unit of the existing or proposed custodial home or homes
- The moral fitness of the parents
- The mental and physical health of the parents
- The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent
In addition to these factors, the courts are permitted to consider any other factor that would affect the child's best interests.
Courts today recognize the importance of a child maintaining a positive relationship with both parents. When one parent wants to move with the child to another state, the other parent's relationship with the child must change. For this reason, Michigan courts take move-away cases very seriously.
However, this does not mean that a parent will never be able to relocate out of state with his or her child. The courts also recognize that sometimes moving is necessary, especially in light of the current economic difficulties facing so many families.
For more information on moving out of state with your child, contact an experienced family lawyer today. Parents who leave the state without taking the proper legal steps may face criminal penalties.