Custody & Relocation: What Happens When a Parent Has to Move
May 26, 2020 Custody
Breaking Down Michigan’s 100 Mile Rule for Parental Relocation
The best-laid plans of mice and men often go awry. Your employer goes out of business; you get a better employment offer far away. Your employer asks you to start working at a different branch. Or, your employment is very stable, but you get that unexpected phone call from the other parent that he or she wants to move out of state. Can a divorced or separated parent pick up and move, or do they need permission? And if they need permission, how difficult is it to get that permission?
In Michigan, most orders that include child custody provisions require a parent to stay in the same geographical area. Parents are not allowed to move more than 100 miles, and they may not move out of state. If they want to move more than 100 miles or out of state, they will need permission from the judge. A parent can obtain a judge’s consent when the parents sign an agreed-upon order or if the judge rules that it is the child’s and the parent’s best interest to move.
Let’s start with that 100-mile rule and the most frequently asked questions about relocation:
Can a Michigan parent move 55 miles, and then a few months later another 55 miles?
No! A parent may not move more than 100 miles from the location at the time of the latest child custody order.
How does Michigan law calculate the 100 miles? As the crow flies or how a parent drives?
The court will review the radial distance between the two homes. In other words, as the crow flies.
Next, let’s consider if there are some exceptions to the 100-mile rule.
There are situations where a parent does not need to obtain the court’s permission when moving 100 miles or more. For example, if the parent wishing to relocate has sole legal custody of the children, the parent will not need to request the court’s permission. When the two parents were living more than 100 miles apart when the divorce or custody action was filed, or when the move allows the two parents to move closer to each other, then no permission is needed to move. Sometimes, in anticipation of future moves, parents may include a provision in the divorce judgment or custody order that describes how a future relocation will be handled. Such a provision is an exception to the 100-mile rule. Lastly, occasionally, a parent and child move to a safe location to avoid the threat of domestic violence, and such a move is allowed as well.
When will the judge allow a parent to move more than 100 miles or out of state?
Michigan law requires a judge to review five factors. Sometimes, these factors are called the d’Onofrio test, named after the case, which first outlined these factors. First, the judge will review if the move has the potential to improve the quality of life for both the child and the moving parent. The judge will consider where each parent’s extended family lives and if that family is available to provide increased or decreased assistance after the move. The judge may also review if the moving parent will have better employment at the new location. Better employment may mean better income to provide the children with better care or maybe better hours to spend more time with the children.
Second, the judge will review if each parent has complied with the parenting time plan. If one parent failed to exercise his or her available parenting time or if a parent often denied parenting time, the judge may consider such actions when deciding on permission for the move.
Third, the judge will consider if a new parenting time plan is necessary and how well that new plan will work to continue a strong relationship between each parent and the children. If a parent attended each extracurricular activity, and the other parent proposes a cross country move, the judge may consider such evidence.
Fourth, the judge must also take into consideration if the parent who opposes the move is motivated by securing a financial advantage. Lastly, the judge will review whether there was domestic violence in the relationship regardless if the violence was directed at the minor child or witnessed by the child.
How will the judge review these factors?
When a parent wants to move more than 100 miles or out of state and the other parent will not agree to the move, the first step is to file a motion or petition with the court. In most counties, the judge will hold a short motion hearing followed by an evidentiary hearing. At the evidentiary hearing, both parents may provide testimony why they believe the move is good or bad, and they may produce evidence supporting their arguments.
Parents sometimes contact us when they obtain a bad result at the evidentiary hearing. They feel frustrated because the “judge did not even look at my evidence”. Parties, attorneys, and judges must comply with the Rules of Evidence and Michigan Court Rules. These rules are very specific and complicated, and sometimes parents with a strong case lose at the evidentiary hearing because they did not follow the correct steps to introduce relevant evidence.
When you want to move or prevent the other parent from moving, contact the family law attorneys at Kraayeveld at 616-285-0808. We have conducted countless successful hearings and want to help you reach success with your hearing.