Divorce or separation often opens an opportunity for a person to start fresh and take on opportunities they might not have been able to previously. Sometimes, this involves making a big move a far distance from the area where they lived while with their former partner. However, when parents share joint legal custody, their child has a legal residence with both parents. If this is the case, the distance of the parent’s big move is limited by Michigan law.
Prior to 2001, custodial parents were permitted to move their child anywhere within the state without court permission. Conversely, custodial parents were required to seek court approval to move their child out of state, even if that distance would be less than an in-state move (i.e. – Detroit to Grand Rapids v. Detroit to Toledo). To resolve this contradiction, the legislature enacted MCL 722.31, better known as the “100-mile rule.”
The 100-mile rule provides that when parents share joint legal custody, the child’s legal residence cannot be moved more than 100 miles from the original legal residence without the consent of the other parent or permission of the court. The child’s original legal residence is determined at the time a divorce or custody action commences. Distance is measured in a straight line, rather than in the number of road miles between the two locations. For example, the distance in road miles from Detroit, Michigan to Saginaw, Michigan can be anywhere from 100 to 120 miles depending on the route taken to get from one to the other. On the other hand, the distance between the two in radial miles is 88 miles. Therefore, in this example, a move from Detroit to Saginaw would not require the consent of the other parent or permission from the court.
When a move would require permission of the court, the court will consider the following in determining whether the change of legal residence is appropriate:
- Whether the move will change the quality of life for both the child and the relocating parent;
- Whether each parent has complied with and exercised parenting time and whether the parent’s plan for moving is an attempt to prevent or inhibit the other parent’s parenting time;
- Whether, if the move is permitted, the parenting time schedule can be modified to ensure that the parental relationship between the child and each parent is preserved and fostered and whether the parents will follow the modification;
- Whether the other parent’s motivation for opposing the change of residence is to gain a financial advantage with regard to child support; and
- Domestic violence, regardless of whether it was directed against or witnessed by the child.
When parents have joint legal custody of a child, the court often determines that the child has an established custodial environment with each parent. Simply stated, the child looks to both parents for things like guidance, support, and discipline. If a change in legal residence would affect the established custodial environment, the court must also consider the best interests factors codified in MCL 722.23. The relocating parent will be asked to prove that the move, and resulting change in the child’s established custodial environment, are in the child’s best interests. The best interest factors include:
- The love, affection and other emotional ties existing between the parents and the child;
- The capacity of each parent to give the child love, affection, and guidance;
- The capacity of each parent to provide the child with food, clothing, medical care, and other material needs
- The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity;
- The permanence as a family unit of the existing or proposed custodial home or homes;
- The moral fitness of the parents;
- The home, school, and community records of the child;
- The mental and physical health of the parents; and
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
Finally, it also worth noting that even when a parent has sole legal custody, there may be a limitation on their ability to move. Michigan Court Rules 3.211 provides that judgments or orders awarding custody (sole or joint) must include provisions regarding the following:
- the domicile or residence of the child may not be moved from Michigan without the approval of the judge who awarded custody;
- any change in the minor’s address must be reported to the friend of the court in writing by the person awarded custody; and
- a change in legal residence of the child must be in compliance with MCL 722.31.
Clearly, parenting a child after separation (whether through divorce or otherwise) means that extra consideration must be given when one parent seeks to move their residence. As far as the law is concerned, the interests of minor children will always be put above the needs or wants of their parents. Chief among these is the child’s interest in having a close and continuing relationship with both parents.
If you are considering a move and are subject to a judgment or order awarding custody, it essential that you contact an experienced family law lawyer. Making such a move without following the proper procedures could subject you to severe criminal penalties.