Following a divorce or separation, a parent’s ability to move with his or her child depends largely upon the terms of the custody order and how far the parent wants to move.
The 100-Mile Rule
Under Michigan law, when parents share joint legal custody, a child has a legal residence with both parents and that legal residence cannot be moved to a location more than 100 miles from the child’s original legal residence, except with the consent of the other parent or by permission from the court. This is known as “The 100-Mile Rule.” While this does allow a parent with joint legal custody move up to 100 miles within Michigan without the other parent’s permission, there are other factors that could prevent the move. For example, a parent with joint legal custody cannot unilaterally change the child’s school. Even though a parent can technically move up to 100 miles away, the resulting change of school issue would then require consent from the other parent or permission from the court. The 100-Mile Rule is measured in radial miles or “as the crow flies,” not driving miles. And there are four scenarios where the 100-Mile Rule does not apply:
- When the custody order grants one parent sole legal custody;
- When the child’s two residences were more than 100 miles apart at the time the divorce or custody action was initiated;
- When the custody order contains an agreement between the parents about how a change in either of the child’s legal residences will be handled (and the proposed move complies with that agreement);
- When a parent seeking to change the legal residence needs a safe location from the treat of domestic violence.
Change in Domicile
Regardless of whether parents share joint legal custody or one parent has sole legal custody, a parent seeking to move out of state – also known a Change in Domicile – must first obtain the court’s permission. When considering whether to allow a change in domicile, the court initially considers five factors:
- Whether the move has the capacity to improve the quality of life for both the child and the relocating parent;
- The degree to which each parent has complied with and utilized his or her parenting time;
- The degree to which the court is satisfied that it is possible to modify the parenting time schedule to preserve and foster the parental relationship between the child the non-relocating parent;
- The extent to which the parent opposing move is motivated by a desire to secure a financial advantage with respect to a support obligation;
- Domestic violence.
If the court finds that the relocating parent has satisfied the above criteria, the court then looks to see if the move would have an effect on the child’s established custodial environment. An established custodial environment can exist with one or both parents (or neither parent in some cases) “if over an appreciable time, the child naturally looks to the parent in that environment for guidance, discipline, necessities of life, and parental comfort.” Even if the relocating parent has sole legal custody, if the proposed move would alter the established custodial environment, the court must then consider whether the move would be in the child’s best interest through a “best interest hearing.” However, if the relocating parent has sole legal custody and the proposed move would not change the established custodial environment, then the court has the option of allowing the move simply upon request, without analyzing the initial five factors listed above or a subsequent best interest hearing. This is a significant distinction.
Absent an agreement from the other parent, obtaining the court’s permission to move out of state can be difficult and there are a number of factors that come into play. Contact me at 248-335-9904 if you would like more information or need legal assistance in seeking the court’s permission to move with your child.