Relocation In and Out of State

Rules of moving out of state have changed over the years and will continue to change. The courts believe the idea that a dad is just as important as a mother. If by moving, either of those relationships is substantially jeopardized, the Court is very likely to deny the move. Cooperation of parties for the benefit of both the custodial and non-custodial parent and the well being of the child are factors to which the Court looks to in deciding to allow or deny the request to move. Courts also look at the educational systems in both places, the cost of living, the crime rates and whether either party has family ties in the proposed new location. The first thing to decide is if the party is planning on moving in state or out of state.

The 100-Mile Rule

When a parent is planning on moving from one part of the state to another part of the state, or from Michigan to another state, the new 100-mile rule applies. The State has recently enacted MCLA 722.31 as part of the Child Custody Act of 1970. The 100-mile rule only applies when the legal residence of a child is covered by a court order. This means that the rule only applies when the parents have joint legal custody of the child. Joint legal custody means that the child is deemed to have 2 legal residences, one with each parent. The 100-Mile rule puts more emphasis and concern on the child's well-being than the previous tests.

A parent is restricted from changing her or his legal residence when a parent of a child whose custody is covered by court order wants to move his or her legal residence more than 100-miles from the legal residence of either party that existed at the commencement of the action which the custody order was issued. Legal residence is defined as the primary residence of the parent at the time the action was commenced. If both parents were residing in the same household at the time the action was commenced, that residence is the initial legal residence for both parties. But if a parent is determined to have no legal residence at the commencement of the action, then the only legal residence of the other parent shall be considered in applying this statute. For example, if the parents resided 40-miles apart at the commencement of the action, neither party could move more than 60-miles away from one of the legal residences that existed at the time of the action.

When a parent is contemplating a move, the term 100-miles is interpreted as road travel. Also the shortest possible land route should be considered. For example, a proposed move from Petoskey to Escanaba would require approval, as even though the actual distance is less than 100 miles, the road mileage is substantially more than 100 miles.

The Michigan 100-mile rule does not apply in certain situations. (1) if sole legal custody is granted to one parent alone; (2) if at the time of the commencement of the action in which the custody order is issued, the two residences were more than 100- miles apart; (3) if the legal residence change results in the child's two legal residences being closer than before the change.

If none of the above situations apply, a parent can change his or her residence if the other parent consents to the change which means in writing signed by both parties, or if permitted by court order. But if the 100-mile rule does apply, the court will look to several factors to determine whether or not to grant permission to move.

Because the child is the courts primary concern in deciding the issue under the 100-mile rule, the following factors are considered:

(1) Whether the parent's move has the capacity to improve the quality of life for both the child and the relocating parent. This does not address the issue of the non-moving parents quality of life.

(2) The degree to which each parent has complied with and utilized his or her time under ta parenting time order, and whether the move is inspired by a desire to defeat or frustrate parenting time.

(3) The degree to which the court is satisfied that if the move is permitted it is possible to amend the parenting time schedule in a manner that will preserve and foster the relationship between the child and each parent and the likelihood that each parent will comply with the modified schedule.

(4) The extent to which the parent opposing the move is motivated by a desire to secure a financial advantage concerning child support. This is to prevent a parent from negotiating a lower support payment in exchange for agreeing to change a residence.

(5) Whether domestic violence was directed against or witnessed by the child.

A custody or parenting time order should provide either the parents' agreement as to how a change residence will be handled, (where the restriction against moving does not apply) or if the parents do not agree on how to change the judgment or order must instead contain mandated language. If however, the move is taking place to seek a safe location from a domestic violence atmosphere, a parent may move outside the 100-miles until the court makes a determination of whether to allow the move.

D'Onofrio Standard (Move out of state or when the 100-Mile Rule does not apply):

Michigan Courts, following a New Jersey case's holding, use a method for examining the proposed out of state move. There are 4 factors that determine whether the court will give permission for the move. Meeting the criteria allows the move, but if you don't, the judge will deny your request. When meeting the standards of D'Onofrio, often courts also use the standards of the 100-mile rule.

The first thing that the Court looks at is whether the prospective move has the capacity to improve the quality of the life for both the custodial parent and the child. The court looks to see if the quality of life for the child and the parent is going to increase. For example, if the parent is going to receive a raise in pay, the court will favor the move, because the family will benefit from the extra money. It is obvious that a judge will not allow a parent to subject a child to a non-beneficial economic environment compared to the one to which they already have.

The second factor that the Court takes a look at is whether the move is inspired by the custodial parent's desire to defeat or frustrate visitation by the non-custodial parent? With this factor the history of the custodial parent becomes very important. If the custodial parent has been cooperative, not withholding visitation, the Court will be more likely to favor the move. Cooperating early in the process, can help the custodial parent out when they are in need of relief allowing such a move later on.

The third factor that the Court takes a look at is the extent to which the non-custodial parent resists the move by the desire to secure a financial advantage in respect of continuing support obligation. The important thing is that the support obligation will never be canceled, but it may be modified for the costs of travel for parenting time.

The last factor that the Court will consider is the degree to which the court is satisfies that there will be a realistic opportunity for parenting time 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. The Courts generally do not like to allow the custodial parent to move and shorten the non-custodial parent's visitation. The important thing to remember is that if you are the custodial parent and are moving, plan to allow more visitation time to the non-custodial parent; usually most, if not all of the summer school vacation. Also if the distance is too far, the custodial parent should offer to pay the travel expense, because the non-custodial parent, did not have that travel expense before the move. Although there is much availability to travel, cost is always a factor, no matter which method of transportation you choose.

It must be shown through all of this that the custodial parent is improving his or her life and that of the child, that the move is not harming and may be improving the relationship of the child with the non-custodial parent and there is no bomb dropped into the non-custodial parent's budget.

Although the standards of either test may be used, even if testimony is presented that would tend to show all points are covered, judges in their discretion can deny the motion. The courts will look to both standards when a parent is contemplating moving out of state and more than 100 miles away.