The Michigan Court of Appeals in a published opinion released on April 8, 2008 makes it clear that relocations that modify parenting time to such an extent that a change in the established custodial environment results, can be the basis for a change in custody.
In Powery v Wells, the mother [“Mom”] moved from Ludington to Traverse City, a distance of 91 miles. Dad filed a motion to change custody and Mom countered with a motion to modify parenting time. Mom claimed that since her move was less than 100 miles, it was insufficient to constitute a change in circumstances and that Dad wasn’t entitled to an evidentiary hearing.
The trial court disagreed. The court of appeals affirmed, citing Brown v Loveman, and holding that “if a requested modification of parenting time results in a change in the established custodial environment, it should not be granted unless the trial court is satisfied that the change would be in the best interests of the child.”
In the Powery case, both parents were actively involved in the child’s life. After the move, one of the parents would become a “weekend parent.” The trial court’s decision was that if Mom chose to remain in Traverse City, that Dad would be the weekday parent during the school year. It is unclear from the opinion what the trial court would recommend if Mom decided to return to Ludington.
An interesting procedural aspect of the case was a shift in the burden of proof. Typically, Dad—who had filed the motion for a change in custody—would have the burden of proof by clear and convincing evidence that changing custody to him would be in the child’s best interest. However, the trial court held and the COA affirmed that since it was Mom’s move that triggered the necessity of modifying the parenting time, she had the burden of proof that her proposed disruption of the established custodial environment was in the child’s best interests.
You can read Powery v Wells here.
You will find other Blog articles about relocations and their effect upon custody orders here.
Hi Jeanne,
I live in Michigan. I was recently offered a position in North Carolina with a September 2 start date. I currently have full legal and physical custody of my son. My son's father has parenting time every other weekend. I have resigned myself to the fact that I am going to have to file a Change of Domicile motion as he will not readily consent to the move.
The position involves an incredible increase in salary. Positions in my field are few and far between. The current economy in Michigan is somewhat of an influence in my decision to make this move. However, I know that an opportunity like this will not be available any time soon. As you can see, I need this process to happen expeditiously. My question at this point is how long will this process take? Also, what kinds of proof will I need to convince the court of the improved quality of life for myself and my son?
To give a little background, the father did not enter our lives until my son was almost 6 years old. Additionally, once there was an order in place, he was not consistent with visitation or support. In fact, there was a bench warrant for his arrest for non-payment of support until the end of 2004. Therefore, out of fear of arrest, the non-custodial parent elected to not avail himself of his parenting obligations. The non-custodial parent is supposed to have three weeks of parenting time every summer. He has yet to take our son for more than a week per summer. I will say that the non-custodial parent is not a bad parent or person, just inconsistent. Consequently, with the exception of the weekend time, the non-custodial parent is not very involved in our son's life. I would like to know if I have a reasonable chance of having my motion approved.
Best regards
WDN
Posted by: DeeDee (please do not include in response) | July 22, 2008 at 04:18 PM
Hello WDN,
How the court will handle your motion for relocation will depend much upon the county in which your case is pending. Some counties have adopted hard and fast policies that it will be a very rare casew in which a relocation will be permitted.
It sounds as though the facts of your case lend themselves well, however, to approval -- especially the fact that the non-custodial parent hasn't used all of his parenting time.
You might call me tomorrow morning to discuss this more fully. Jeanne M. Hannah
Posted by: Jeanne M Hannah | July 22, 2008 at 05:57 PM
keep up the good work!e
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Posted by: Martin | October 01, 2008 at 09:35 AM