Parents who are divorced or have never been married can face serious disagreements over how to divide parenting time with children. The challenges tend to be greatest when one parent wants to move out of state, or wants to move to a new home that is within the state but still a considerable distance from the other parent’s home.
Courts making custody orders in Michigan base their decisions on the best interests of the children involved. Michigan law begins with an assumption that it is usually in a child’s best interests to maintain a close relationship with each parent. Judges can consider any factor relevant to parenting and are guided by some specific factors that are set out in the state’s laws. For a list of these factors, see Michigan Child Custody FAQs.
When one parent wishes to move away after a court has entered custody orders, there will be two initial questions:
If the proposed move is either out of the state or more than 100 miles from the place the child and parent lived at the beginning of the original custody case, the parent will have to get permission to move with the child either from the other parent or from the court, unless the move will actually result in the parents living closer to one another, or the parent’s homes are already located more than 100 miles apart. A parent with sole legal custody does not have to get permission, as sole legal custody automatically gives one parent full decision-making power over where the child will live. A victim of domestic violence can move with a child before seeking permission if moving is necessary to escape the threat of violence.
Answering this question requires looking closely at the current custody arrangement. A court will consider not only the custody orders, but also how the parents have actually divided both parenting time and responsibilities. Under Michigan law, a child has an established custodial environment with a parent if, over an appreciable period of time, the child has looked to that parent not only for the necessities of life, but also for guidance, discipline, and comfort. A court will also consider the child’s age, the physical environment within the home, and the likely permanency of a custody arrangement based on the preferences of both parent and child.
Even when parents share legal custody of a child, if one parent has sole physical custody, a court will probably not find that a proposed move would change the established custodial environment, even though such a move will usually require a change in the parenting schedule. So, for example, if a child currently spends approximately 20% of time with a non-custodial parent, and this time consists mainly of alternate weekends, the court may allow the custodial parent to move with the child, even if it means that the child would have to spend most of the summer and some additional vacation time with the non-custodial parent in order to maintain a similar division in parenting time.
If the parents have joint physical custody, however, and the child spends equal or nearly equal time with each parent, the court is very likely to find that the child has an established custodial environment with each parent and that a move will necessitate a change in this custodial environment, because it is difficult (although not always impossible) to achieve a nearly equal division of time sharing when homes are a considerable distance apart.
If the proposed move will not change the established custodial environment, the court will consider only the following factors, (as set out more fully in Section 722.31 of the Michigan Compiled Laws):
The court will not require a full hearing and will generally consider only whether there is more evidence in favor of the move than against it.
If, on the other hand, the parent opposing the move can demonstrate that the move would change the child’s established custodial environment, the court will hold a full hearing to determine whether the standard has been met for a modification in custody. This means that the moving parent will have to show by clear and convincing evidence that allowing the parent to move with the child would be in the child’s best interests. The court will look not only at the factors listed above, but at all of the factors that go into an initial custody determination.
Move-away disputes are often time-consuming and expensive, especially if you share legal and physical custody. You may need a mental health professional to evaluate the potential effects of the proposed move on your child. If you are in the middle of a dispute about a potential move away with your child’s other parent, your best option may be to negotiate a compromise. If you can’t find any workable compromise, contact an attorney for advice.