|August 14, 2014|
Custodial Parent Seeking to Move:
If you are seeking to move your minor child (or children) more than 100 miles away from your current location or leaving the state, you must generally seek permission of the court to move pursuant to the 100 Mile Rule MCL 722.31, and Required Request to Move Out of Michigan Rule MCR 3.211(C).
Exceptions to the 100 Mile Rule (MCL 722.31):
1st. the 100 Mile Rule does not apply if either parent has sole legal custody of the child. However, moves out of state must still comply with MCR 3.211 Request to Move Out of Michigan.
2nd. This may seem obvious, but in order for the 100 Mile Rule to have effect, the child’s custody must be governed by a court order. This generally means that you have a custody/parenting time order.
If you do not, and custody is just agreed on between the parties privately, then the moving party must seek the courts approval (Under MCL 722.31). This approval will generally be granted because the court does not have an order in place governing custody otherwise.
Will the Move Change the Custodial Environment?
If the Move will destroy the current custodial environment then, both the 100 Mile Rule Factors and Child Custody Best Interest Factors must be considered
A custodial environment can be established with one or both parents (see MCL 722.27(1)(c)). This finding is based on whether, “over an appreciable period of time, the child naturally looks to a custodian in that environment for guidance, discipline, necessities of life, and parental comfort.”
Ask yourself; who feeds the child and puts him to bed? Who brings the child to worship services? Who spends the most time with the child? And who does the child look to most for guidance and care? Who provides discipline for the child? Who supports the child and provides food and clothing?
If there is an established custodial environment and it will change as a result of the move, then the court will weigh the 12 Best Interest Factors (MCL 722.23). The burden of proof for the 12 Best Interest Factors (“clear and convincing evidence” or “by preponderance of the evidence”) is determined by whether there is an established custodial environment or not.
Calculating 100 Miles:
When calculating the distance of the move, the court will measure radial miles (straight line distance) from the former residence of the child to the new residence. Bowers v. Vandermeulen-Bowers, 278 Mich App 287.
Also, keep in mind that the 100 mile rule does not differentiate between interstate and intrastate moves. Brown v. Loveman, 260 Mich App 576. But, where court order prohibits moving your child out of state, the 100 mile rule factors apply to your petition to move.
100 Mile Rule Factors:
The court will consider the factors below before permitting a legal residence change over 100 miles:
(a) Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.
Really, the court just looks to whether your move was inspired by better schooling, new job, increased wages, proximity to family care, etc.
(b) The degree to which each parent has complied with and utilized his or her time under a court order governing parenting time with the child and whether the parent's plan to change the child's legal residence is inspired by that parent's desire to defeat or frustrate the parenting time schedule.
Essentially, are you moving to “get away from him or her.”
(c) The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child's schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification.
Here the court looks not at whether the new parenting time schedule is better, but whether the proposed parenting time schedule provides a realistic opportunity to preserve and foster the parental relationship previously enjoyed by the non-relocating parent. McKimmy v. Melling, 291 Mich App 577.
(d) The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation.
In essence, are you moving to increase your child support?
(e) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
Moving can be difficult by itself and adding a legal battle on top can make it overwhelming. Before moving or petitioning the court, contact our experienced legal team in Grand Rapids at 616-698-0000 or www.clickforhoward.com
Statutory and Other Links: Custodial Environment MCL 722.27; 100 Mile Rule MCL 722.31; Required Request to Move Out of Michigan MCR 3.211(C); Change of Custody MCL 722.23