Roadmap: How to Win a Relocation Motion

A difficult issue is raised when a parent wants to relocate with the parties' children to another state. Michigan child custody orders typically provide that neither parent may remove the children from the State of Michigan without the court's approval. Since the enactment of "the 100-mile" law, clear-cut standards are developed for trial courts to follow in deciding whether to grant a motion brought by a parent who wishes to relocate.

These cases are always dependent upon the particular facts. Two cases provide guidance in the type of evidence that a relocating parent should present to the court to convince a judge that the relocation should be allowed.

See Brown v Loveman, 260 Mich App 576 (2004) and a recently decided unpublished case, Mitchell v Mitchell, Docket No. 266161 (Court of Appeals decided August 17, 2006).

You can also read an earlier post "How a Trial Court Looks at a Relocation Motion" here.

Parenting issues have long been of special interest to Jeanne Hannah. To contact Jeanne Hannah with your questions or to view her Family Law website, click here.

 

Comments

[Steve]

I have a question..please. Has to do with MCL ?? Not sure what one now...?

I moved 72 miles and crossed Michigan/Indiana State line. I moved with non-custodial parent giving verbal permission, and i didn't seek or have courts permission.

I've always had physical custody for the past 10 years. I managed to loose custody Judge gave Temp. custody to my sons mom. He is 15. Without much correct info Judge gave custody.

Did I or not, make this move in error. I'm confused every tiem I read the MCL codes...?

Thank You Steven

there is an eveditary custody hearing coming up at end of May. I'm trying to handle this pro se.. Son had already informed judge he wants to continue living with me(dad) and siblings here.

[Kris Jenkins]

My son's girlfriend returned to WI for a family visit with my grandson. The amount of time my son approved for her to be gone with his son, was two weeks.
She has now been in WI for 4 wks, with no intentions of moving back.
Can you please direct me as to how to go about getting my grandson back?
My son tried going to the Friend of Court and they told him they could not help him without a lawyer. Is this true?

[Jeanne M. Hannah]

Kris:

You wrote:

>

Kris, it is important for you to know that the FOC will not help people like your son--it is not their job. You have provided too few facts for me to really answer your question. (It is important to know, for example, whether paternity has been established, whether an Affidavit of Parentage has been signed, which parent has custody, etc.) But the bottom line is this: At the present time, Michigan is your grandson's "Home State" for custody and parenting time purposes. If the mother of this child detains him outside of Michigan for more than 6 months, then WI will become his "Home State" and custody and parenting time decisions will be made in WI.

Your son needs to take legal action NOW.

Jeanne M. Hannah

[Jeanne M. Hannah]

Steve:

Judges tend to get angry when a person disobeys a court order. I understand that you thought you were doing the right thing because you had verbal permission from the mother.

The rights of a fit biological parent should always trump the rights of a grandparent. The preference of the child is only one of the factors that a court needs to consider in making a decision regarding custody.

Apparently the biological mother is not now in the picture. But the legal issues involved in a case like yours truly need a lawyer's expertise. You may have a very good case, but I question whether you can make the judge see your constitutional law points without a lawyer involved. This is particularly true if the grandparents are represented.

Jeanne Hannah

[Denise]

My husband just heard from his ex-wife today that she is planning to move their three kids to Maryland where her husband has found a new job. This isn't new. They were divorced in early 2000. That summer she moved the kids (at that time 4, 5 and 9) with her new husband to Florida, telling my husband that he had no say in the matter, as she could prove it was in the best interest of the children. He did not contest as his lawyer at the time told him he didn't have a chance. He is the non-custodial parent, however, they have joint legal custody. They moved twice while in Florida to different school districts. In March 2005, they moved back to Michigan to the town they were divorced in. He and I moved in 2002 to the home we are currently in, 70 miles south of the divorce town. In August 2006, they moved again to another location in Michigan which was further from our home than the divorce town. They have a support order dated September 2005 in which they were both residing in Michigan stating the domicile shall not be moved out of the state of Michigan. She now thinks she can move to Maryland with the three kids (now 11, 12 and 16) because her husband has a job offer there, again claiming my husband doesn't really have a say. I understand the Brown v Loveman, but when is enough, enough? And what legal action does he have? We have not gotten an attorney to this point because, we have seen fighting her has caused alientation to the children....your input is greatly appreciated.

[Jeanne M. Hannah]

Because your husband has joint legal custody, his ex-wife does not have the unfettered right to remove the children from the State of Michigan. However, the only way he could prevent this from occurring is to file a motion to change custody.

A strong factor in your husband's favor is the fact that this mother has moved the children 4 times in 7 years and now proposes to move them again. This does not make for a stable, satisfactory custodial environment.

[Amanda]

We are looking to move and I have Sole Physical and Legal Custody of My Child. The Father and I wrote out a visitation schedule and submitted it to the court system for recording but he does not follow it and it was not court ordered. I am looking to move to Colorado for a new Job with my new partner but I want to make sure there are no legal hangups regarding my daughter.

[Jeanne M. Hannah]

Amanda, because your existing court order will provide that you must get permission of the court to remove your child from the State of Michigan, you will need to file a motion to relocate unless your child's father will agree to the move. If he agrees, then you will need to submit this agreement in the form of an Order for the court to enter.

You are fortunate that the "100 mile rule" doesn't apply to you since you have sole legal custody.

[Linda]

Im just wondering what are my chances this is the situation... I filed a motion for change of domicile (reasoning, my father is sick in GA and Im going to take care of him he has no family there besides his wife and she works two jobs) We went to court and since we couldnt come to an agreement we have an evauation coming up(family mediation) he wants custody but for at least the last 4 yrs he hasn't been involved on a consistant basis maybe once a month or so if that he says because of his work, it was suppose to been reasonable parenting time but he didnt want to do reasonable I couldnt make him see her besides he lives walking distance. I dont want to take her from her father in the motion I asked for him to have summer breaks, holidays, and simester breaks whatever his choice. Now since we've been to court he's been picking her up, spending the weekends with him going to the movies 1-3X's a week, going on mini shopping spree's and all sorts of stuff that he said he couldn't do...Im wondering is this going to have any effect on our evaluation??? What will this mediation be like? Im kind of nervous, I don't know what to expect.

[Jeanne M Hannah]

Linda, it does not sound as though you have a terrific chance of prevailing. Relocation motions are very difficult to win. You need to prove the kinds of things that I mention in my Blog. By that, I mean that you have to convince the court that there are reasons why the move would benefit your child. The court has to look at the evidence presented "with the child as the focus in the court's deliberation."

A Michigan family lawyer whom I very much respect spoke at a seminar a few years ago. His advice was for a person in your position who has a weak argument for relocation to get approval by agreement. He recommended the following:

1) Offer to pay all transportation for the child to and from parenting time with the other parent;
2) Offer virtually all school vacations for parenting time; and
3) Offer a reduction in child support.

[Linda]

I just dont understand how can they make a choice like that based on his history with our daughter. He hasn't been there for her physically and now all a sudden now that Im trying to leave now he wants to be apart of her life Im not doing this to be malicious. This is not right! I dont have a problem with him seeing her...over the last 6 yrs Ive basicly been begging him to be involved. Now all a sudden his support from another mother has increase from 300 somthing to 1000 he wants custody so he wont have to pay, because Im leaving! I would consider meeting him 1/2 way, all school vactions and a reduction.

But looking at the best interest for her...not trying to be onesided she would be happier at least he would have to see her because it is court orderd all vacations because in past times he has not gotten her for one vacation he has no other choice but to do it because it's orderd.

[Nadine Cichonski]

I have a question about the new 100-mile rule. I have been divorced since 2004. I have full physical custody and joint legal. I am now engaged to a man that lives in Ohio but only 70 road miles away. I'm now living in Oakland county MI. The man i am going to marry can not move out of his area because of his job, he is one of the owners of a business. My job however, benifits me to move to a new location. The area he lives is rated one of the safest and has the highest rated schools in the area. I would like to move me and my child in with him once we are married.
With the new 100 mile rule do i need to file a motion to move and get permision from the court or do i simply just need to fill out the change of address form with Oakland county court?
I would really appreciate your help with an answer to this question so.. much.
Thank you
Nadine

[Jeanne Hannah]

Nadine,

Your problem may not be so difficult. However, it's not the 100-mile-rule that is the problem. Your divorce judgment contains a provision that your child's residence may not be removed from the state of Michigan without approval from the court. If your former spouse agrees that you may move, then the court will readily approve an amended judgment that provides for the move.

If your former spouse will not agree, then you'll have to file a motion to remove your child from Michigan to Ohio. Since it will not mean a move of more than 100 miles, you'll have an easir time in court.

Contact me at my email address jeannemhannah@charter.net if you run into problems and need a referral to a family lawyer in the county where your case is pending.

Jeanne Hannah

[Jeanne Hannah]

Responding to Linda's comment above:

Linda, of course this is unfair . . . but quite frankly, the cost of having a lawyer do a relocation motion would likely be several thousands of dollars and could take up to six months to accomplish. That's why many relocating parents elect to try a negotiated settlement.

My suggestions above about how to get an agreed upon order to relocate are generalized. The first 2 suggestions are really quite optional, and in your case, it may well be that your child's father would agree to the relocation for the mere "price" of lower child support.

If you need more specific information, let me know by email where your case is pending. I can certainly help you if it's one where I practice. I can also help you attempt to negotiate a settlement. In the alternative, I can provide you with a referral to a highly qualified family lawyer if you're located in lower Michigan. You may contact me at jeannemhannah@charter.net

[Jeanne Hannah]

Nadine,

Your problem may not be so difficult. However, it's not the 100-mile-rule that is the problem. Your divorce judgment contains a provision that your child's residence may not be removed from the state of Michigan without approval from the court. If your former spouse agrees that you may move, then the court will readily approve an amended judgment that provides for the move.

If your former spouse will not agree, then you'll have to file a motion to remove your child from Michigan to Ohio. Since it will not mean a move of more than 100 miles, you'll have an easir time in court.

Contact me at my email address jeannemhannah@charter.net if you run into problems and need a referral to a family lawyer in the county where your case is pending.

Jeanne Hannah

[Linda]

When the court says in the best intrest of the child what does that mean in a change domicile case? That child or children being with the custodial parent all their life is that not enough? Meaning would they (court) mind breaking up a family? Now that I have to move away my ex custody. My family has always consisted of my children and I, Ive been single parenting for so long I feel that I have the right to decide and also my child, but I dont know how this works?? What should I do or say?

[Jeanne M Hannah]

Linda,

Every case like yours is dependent upon its unique facts. Michigan does not permit removal of children from the state unless the non-custodial parent agrees or the court orders the removal. You need to consult with an attorney about the facts of your case.

[Heidi McKissick]

I have a question for you, I had my son when I was 16 years old, my son now 12 has always lived with me and my current husband of 6 years and his 3 sisters.Last February my husband recieved a job offer in California. We were currenty residing in Livonia and my husband had been working for Chrysler for 13 years as an Engingeer. I retained an attorney to do a change of Domicile but before that was entered my sons father enter a Restraining Order for my son to not be removed from the state.So obviously we went to court in Wayne County and the Judge sent it to Mediation, with no resolution, so we wnet back in September to the next step of Mediation, so now my husband and daughters had moved to California for 5 months and my son was unable to go,he was devasated. I ended up moving my daughters back to Michigan after Temporary Custody was given to his father to begin school until further Ordered by the Court. During this time I was not being given Parenting Time and to do so my attorney continued to want more and more money to do so. Finally in January of 2008, now 11 months later the Mediator came back with her recommendation that my son finish the school year with Dad and then I need to petition the Court to have Physical Custody be returned to me. But due to all the stress of my whole family moving from California my husband lost his job in California in October 2007 and moved back to Michigan. After 5 months of being unemployed and both of us seeking employment in Michigan, there was nothing for us anywhere. My husband recieved a job offer back in California and with our other children in mind we took the offer, it was a 6 figure income( life style we were used to), so currently we have just done a 3 year lease on a home in california and still my son is stuck in Michigan, vry ubhappy and depressed. In the Mediators recommendations she stated my son is of the sufficent age and maturity to have a preference and that is to be with me, she believes that his dad has not been his provider for everyday life until now and that she is very worried about his emotional well being while with his dad and that he should be enrolled in therapy immediately, I have asked this to happen yet his father is refusing. Now it is coming up to the end of the school year and I want my child back, but to due so My attorney wants 8k to get me first just summer visitation and then will Petition the Court for my son to be returned to me as stated in the Medators recommendation.

What are your thoughts? I have already spent everything I have and my parents have to get this far and I still ahve nothing not even Parenting Time.

What should mI do, I really need help, please.

Thanks

Heidi McKissick

[Jeanne M Hannah]

Hello Heidi,

It must be awful for your son to be caught in the middle. Relocations are very difficult and very expensive. Moreover, there's no guarantee of success.

Have you considered offering to allow your son's father to pay no child support and to take most of the summers, all of Spring Break and all of Christmas Break as a settlement of the custody issue? Best of luck to you with this legal proceeding. Jeanne

[HEIDI MCKISSICK]

Jeanne,

I have tried all that you suggested and more. How can I write up my own Petition for Change of Domicile and represent myself? Do you beleive this is a good idea? I have been told by numerous people that at this point in my case, the Judge needs to hear the truth and be direct and you can only do that for your self, do you believe this?

Thanks

Heidi

[Jeanne M Hannah]

Heidi,

There's an old saying: "The lawyer who represents him/herself has a fool for a client." If even lawyers shouldn't represent themselves on something so difficult as a change in custody motion, imagine how much more difficult it would be for a layperson to represent herself.

Is your son's father represented? Do you feel intimidated by his lawyer?

On the one hand, it's difficult to imagine why -- based upon what you've said about the facts of your case -- your son would have been placed with his father. It's tragic that your case has taken so long without even getting to trial.

If you have to represent yourself, you should remember that not only do you need to make sure that the judge hears the truth and that you are direct, but also remember that you should tell your facts chronologically so that it all makes sense to the judge.

Your son will get the opportunity to talk privately with the judge and say which parent he wants to live with. Make sure that your son understands that telling his preference means more than saying "I want to live with my mom and stepdad and stepsisters." He needs to state his "reasonable preference." This means he needs to have good reasons for his preference. Best of luck to you.