Relocation motions where parents share custody

Another relocation case was recently decided by the court of appeals, Skeins v Mead (March 17, 2009) Docket No. 287426. In this case, the parents shared  joint legal and physical custody of the child,  alternating custody on a weekly basis. Both parents were, in fact, engaged in jointly raising the child in two home environments, although the father was periodically absent for military deployments. It was undisputed, other than the time of defendant-father's deployment to Kosovo and short training period on his return, he complied with the schedule. He is now employed by the National Guard as a trainer.

Relocation. The Plaintiff's motion was precipitated by economic hardship - lack of local employment which led her new husband to find a good-paying job in Texas and optimistic hopes by plaintiff to also land a job.

The record showed both parties have been devoted, caring, and responsible parents who love their child and have worked together for the child's best interests. There was no evidence indicating that plaintiff's motion was motivated by anything other than economic circumstances and distress.

First, as required, the trial court examined the five factors set out in MCL 722.31(4) (the so-called "100-mile rule"), which are examined on a preponderance of the evidence standard.

MCL 722.31(4) provides:
(4) Before permitting a legal residence change otherwise restricted by
subsection (1),[1] the court shall consider each of the following factors, with the
child as the primary focus in the court's deliberations:

(a) Whether the legal residence change has the capacity to improve the
quality of life for both the child and the relocating parent.
(b) The degree to which each parent has complied with, and utilized his or
her time under, a court order governing parenting time with the child, and whether
the parent's plan to change the child's legal residence is inspired by that parent's
desire to defeat or frustrate the parenting time schedule.
(c) The degree to which the court is satisfied that, if the court permits the
legal residence change, it is possible to order a modification of the parenting time
schedule and other arrangements governing the child's schedule in a manner that
can provide an adequate basis for preserving and fostering the parental
relationship between the child and each parent; and whether each parent is likely
to comply with the modification.
(d) The extent to which the parent opposing the legal residence change is
motivated by a desire to secure a financial advantage with respect to a support
obligation.
(e) Domestic violence, regardless of whether the violence was directed
against or witnessed by the child.

The COA found no fault with the trial court's analysis of the factors required under MCL 722.31(4) and its ruling that a change of domicile was warranted.  However, the COA held that the trial court was in error when it ruled that the established custodial environment was with the mother and that, therefore, no best interests analysis was required when changing the existing custodial arrangement and allowing the mother to remove the child to Texas.

The COA said that it was clear that a joint established custodial environment existed with both parents and that the trial court's ruling that the established custodial environment was with the mother was against the great weight of the evidence. The trial court granted the plaintiff-mother's motion for change of domicile allowing her to move the child from Michigan to Texas.

The father argued that the trial court should not have found that factor (b), "[t]he degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parent's plan to change the child's legal residence is inspired by that parent's desire to defeat or frustrate the parenting time schedule," did not favor either party's position.  He argued that the court failed to properly credit him under factor (b) [in other words, he felt that the court had taken his deployments into consideration]. Thus, he argued that the court erred in determining that the factor supported a change of domicile. The COA said, however:

[T]he court did not find that factor (b) supported a change of domicile, and the court found that defendant, absent his deployments, had complied with the parenting time order and utilized his time under the order. The court further noted that the periods of deployments did not inure to defendant's detriment. Moreover, at the hearing, defendant's counsel indicated that factor (b) was essentially irrelevant and favored no one. The circuit court did not err with respect to factor (b).

The COA reversed the trial court's ruling allowing the relocation, however, based upon the fact that the parties shared a week-on week-off custodial schedule. As a result (again not holding defendant father's deployments against him), the COA said that it was "a close call" as to whether the mother, in fact, held the established custodial environment. Deciding that the parents shared a joint custodial environment, the COA remanded the case  to the trial court for a best interests hearing and directed the trial court to use a clear and convincing evidence standard.

This is a good case to review to see the kind of evidence the COA found persuasive for the non-relocating parent. You can read Skeins v Mead here.

Do you need help with relocation case? Find a Michigan Family Lawyer near you.

Comments

[Jeanne M. Hannah]

A move of 20 miles would never be grounds for a change in custody or parenting time. You are right about the 100 mile rule. It sounds as though you are getting bullied. On the other hand, a change in the school may be a problem. Since you have joint legal custody, both parents have to agree on the school. You cannot unilaterally change it. Is there a way that you can move, but still get your son to his school?

You don't mention how your joint physical custody works. Could it be re-configured so that a change in the school would work for both parents?

[Holly Reinsma]

I have a question. I have a 6yr old son. His father and I were never married, but do have a parenting time order in place. We share Joint legal custody as of this spring and joint Physical custody. I have a son who is 16 from my first marriage that I have Sole Custody of. My 16 year old is having problems with school. All my family lives 20 miles away. I am right in the middle of my 6yr olds father's family within 2 miles of me. I want to move closer to my family and be in the same area with them. So I would be 20 Miles away. I am now getting threats to take me to court since I put the house up for sale. there is nothing in our current order that states I'm not to move away. I think the only thing in there is the 100 mile rule. Before I purchase a house, I would like to know if I'm in the wrong for moving closer to my family. Our order wouldn't be interupted, just the change of school is the only thing

[Lynn]

By the way.. does this mean if there's established custodial environment with the mother and the change of domicile is not going to affect the ECE, such as the father rarely seeing the child, the court is not required to look at the best interest factor...?

[Jeanne M Hannah]

Joe, I wrote about Powery v Wells here. http://tinyurl.com/omomgn Jeanne

[Joe Jurecki]

I hope they are aware of the powery v wells case to sight in thier brief as this case set the ground work to stop these disruptive moves in thier tracks when both parents are activily involved in raising the children

[Jeanne M Hannah]

HJ, what county is your case in?

[HJ]

My ex has been residing in Colorado since 2005. My daughter was born in Colorado but she and I moved to Michigan in 2006 as his family was in Michigan and they were willing to help me with my daughter. The divorce was finalized through Michigan court in 2008. We have join legal custody and I have sole physical custody.
The last time he saw her in Michigan was July of 2007 for less than a week. The last time he saw her period was in Colorado for about 3 days in October of 2008 when his mom visited him and took my daughter.
Now my daughter and I are trying to move out of Michigan and move to Florida. I have a better job ready for me along with fiance there.
The current visitation time in the divorce decree is liberal.
He has not filed for a motion to have the visitation time changed either.

Also, he is agreeing to us moving under the condition of every summer and alternating holiday visitation time. I have no problem in him spending time with her as I do want her to get to know him but she has never been around him alone or spend any nights with him. She is 4 years old and I do not feel it is in her best interest. I feel we should start building up the time to ensure she gets comfortable with him and so on. My lawyer is telling me to just agree stating that the FOC guideline states that my ex is entitled to 12 weeks of over night visits and her age of 4 is old enough where the court will not count the fact that she never spent a night with him into consideration and he will be granted with full summer anyways.

Do you see any possibility that the court would grant for us to move in this case? As he is not even in Michigan anyways...and has not really seen her...?

Is what my lawyer telling me true and is her age not a fact for consideration in determining the overnight visit time?

Also, if I didn't agree to my ex's proposal and have the court decide on the change of domicile, isn't he required to file a separate motion in order to change the current visitation time of "liberal"? Or does the visitation time have to be changed first for the court to grant the change of domicile?

I am trying to get your opinion and thinking about changing lawyer if what he says is not true as my lawyer doesn't seem to have my and my little one's best interest but is just trying to close the case...

Thank you.

[Jeanne M Hannah]

Eric,

The ball is in her court. If she moves without first seeking permission from the court, she will be in contempt of the provision in your judgment that states that the domicile of the children may not be moved from Michigan without the court's permission. She would be casting a negative aura on her case if she makes this unilateral decision to move without getting your permission and the court's permission. Make it clear to her in a writing (email with BCC to yourself) that you oppose her moving outside the state).

She will have to file a motion for permission to change the children's domicile and for permission to move more than 100 miles away. Whether or not she can get such permission will depend upon several factors, including your opposition, your relationship and parenting time with the children (including your faithful exercise of parenting time), and, perhaps, which circuit court has jurisdiction over your case. Courts are seeing more relocation motions because of the poor economy in Michigan. I understand from colleagues that some requests are granted. The specific facts of your case will control.

[Eric Wegner]

Jeanne,
My ex-wife has physical custody of our 3 children ages 13, 11 & 8 and it states in our decree that she can't move over 100 miles. She is graduating from college in May with an interior design degree and is claiming she can't find a job in MI even though she has hardly looked. She asked what my sentiments were on her moving and I told her I would be against it because I would not be able to have my normal visitation with my children. She is now telling the children they are going to move out-of-state---what should I do now?
Thanks,
Eric

[Jeanne M Hannah]

I'm glad you are finding the information useful. Please pass along to your clients as appropriate. You may sign up for email alerts so that when new items are posted, you will be notified. If the topic doesn't interest you . . . that's what the delete key is for. Jeanne

[child custody agreement]

I recently came across your blog and have been reading about child custody agreement. I thought I would leave my first comment. I don't know what to say except that I have enjoyed reading. Nice blog. I will keep visiting this blog very often.

[Beth Schuman]

Missy, are you asking about Timothy P. Flynn's post above: "What is really sad about this is that the Father apparently feels life would be better for his kids down in Texas, so far away from their Mother." Cause that confused me too. i haven't yet read the actual case yet.

[Missy]

Jeanne, In the Skeins vs. Mead case it says that the mother re-located to Tx. not the father. So did you mean to say that the mother should have custody in Tx. or the father should have the children in Mi?

[Jeanne M Hannah]

Kami,

Military servicepersons are protected from change in custody motions while they are deployed on active duty. See this prior post on the Blog - Military Deployments and Child Custody Orders published on July 19, 2006. http://tinyurl.com/cqqskh It explains all of the difficulties associated with family law issues that crop up during deployment of one of the parties.

An APO address will never be sufficient to notify your former spouse of a court proceeding of this nature. You need to be clear with the court about his active military status or your lack of candor might later be used against you.

Jeanne M Hannah

[Kami Wagner]

I have a motion I am filing myself and my ex-husband is in the military stationed overseas. What is the proper procedure for serving him. He is not represented by an attorney. I have is APO address but I am not sure this is proper. This is purtaining to a custoday issue.

[Timothy P. Flynn]

Here is yet another case where the appellate court, sitting in review, is hesitant to condone the highly disruptive (and oft traumatic) event of a change of domicile that is unwanted by one of the parents. These cases are especially troubling where, as here, there is an established custodial environment in both homes. What is really sad about this is that the Father apparently feels life would be better for his kids down in Texas, so far away from their Mother.

Jeanne, thanks for this informative post.