Pitfalls await divorced parents when out-of-state move considered

By Marie E. Matyjaszek

Law Office of Robert Matyjaszek

It seems like everyone wants to move out of Michigan lately.

We only have two seasons - winter and construction - and you get tired of both fast when you're out of work.

Thinking of your two kids, you found a great school district and condo in Florida, complete with an association playground and pool.

All of your job leads are out, and the offers should come pouring in any minute now.

As your excitement builds about all of the opportunities, you mention it to your ex-husband during the parenting time exchange, trying to play up all of the positives as you interpret his facial expressions.

Wait for it, wait for it...nope, he's not going to just agree to let you move the kids out of state. Time to consult your friendly family law attorney.

The great state of Michigan has enacted a specific statute, MCL 722.31, commonly referred to as the "100 Mile Rule," which provides the court with five factors to consider when a parent wishes to relocate their children more than 100 miles away from what was the children's legal residence at the time the court action was started.

This same rule applies if you want to move the kids out of the state of Michigan, even if that new location is less than 100 miles away.

The court must consider each of the following factors with the child's interest - not yours - as the primary focus:

1) Does the move have the capacity to improve both the child and moving parent's quality of life?

2) How well has each parent complied with and used their parenting time ordered in the past, and is the moving parent relocating in an attempt to make the other parent's exercise of parenting time more difficult?

3) To what extent the court is satisfied that the parent who is not moving can have a modified parenting time schedule that will allow for a good relationship between both parents and the child, and whether or not the parents will actually comply with the new schedule.

4) Is the parent opposing the move seeking to do so because he or she wants a financial advantage with respect to his or her child support obligation?

5) Is domestic violence a factor in the move? This can be considered whether or not the minor child has witnessed it or if the child was actually the victim.

Like most everything else in life, exceptions to the rule do exist. If your ex approves the change, you can make the move, but make sure it's in writing before you pack up the van and go.

If you have sole legal custody of your children, the court does not have to consider any of the factors in MCL 722.31(4).

While Michigan Court Rule 3.211(C)(1) mandates language in a custody order stating that the court has to approve an interstate move, the court rule doesn't require anything other than compliance with MCL 722.31 (See Spires v. Bergman, 276 Mich App 432 (2007)).

That statute specifically provides in subsection 2 that the section "does not apply if the order governing the child's custody grants sole legal custody to one of the child's parents."

If there is a threat of domestic violence, the victimized parent can actually move to a safe house while awaiting the court hearing.

The other two exceptions to the rule are if you lready live more than 100 miles apart, or if the move is actually making the distance between the two parents shorter.

With fewer households having a stay-at-home mom or dad, both parents tend to share the parenting responsibilities equally.

Those divorced couples who have joint physical and joint legal custody face an additional burden if one of them desires to move 100 miles away or to another state.

In addition to the factors discussed above, the court must also take into account the best interest factors set forth in MCL 722.23, as the move would change the established custodial environment.

The best interest factors also force the moving parent to prove by clear and convincing evidence that the great new home in Florida is in the child's best interest.

Remember that the orange barrels may not be your only roadblock to moving out of state with the kids.

Most of my clients face heavy opposition from their ex when a move is at stake, and motions to change custody by the party who's not moving are common.

Don't assume it's going to be a slam dunk and rush to gas up the tank - you may have to turn around for a reason other than the kids fighting.

The author is an associate attorney at the Law Office of Robert Matyjaszek PLLC, Jackson, Michigan.

Her blogsite is:

http://www.re-ciprocity.blogspot.com

She can be reached at (517) 787-0351 or by emailing her at matyjasz@hotmail.com.

Published: Thu, Sep 16, 2010

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