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The Importance of Legal Custody

I am a family law attorney, also known as a divorce lawyer, in the Rochester Hills area of Oakland County Michigan.  One of the first things I explain to people whom I meet with that are faced with the prospect of divorce is custody.  There are two types of custody, legal custody and physical custody.  Physical custody basically addresses which parent will spend the most time with the children.  Legal custody addresses decision making with regards major issues for the children (such as school and medical treatment) and access to records.   A new area where the importance of legal custody has come up is with respect to one parent seeking to move out of the state with the children after the divorce.

The Issue    

Does a parent with sole legal custody need to seek approval from the other parent or the court before moving out of the State with the children? 

The Answer

It appears under the current state of the law in Michigan that the answer is no.  The matter of Brecht v Hendry (Mich App Docket No 308343, July 24, 2012, unpublished) provides a good example of how the courts currently handle this issue.

In Brecht, the mother appealed the divorce court's order denying her motion to change the domicile of their daughter to North Dakota.  They parties were not married and had their daughter in November 2007.  The trial court awarded sole legal custody of the child to the mother, Brecht and awarded parenting time to Hendry, the father. 

The order awarding custody provided that the domicile of the minor child shall not be removed from the State of Michigan without the approval of the Court and that the mother could not change the legal residence unless the change complied with MCL 722.31.  MCL 722.31 is also called the “100-mile rule” and it is a statute that governs whether a parent may move the child from one address to another after the entry of a custody order or judgment of divorce.

In 2011, the father asked the court to order the mother to show cause and moved for a change to the custody and parenting time order after she moved to North Dakota with their daughter without first obtaining the trial court's permission.  The mother then filed a motion requesting permission to move out of the State with their daughter which the court denied because it did not feel the move was in the best interests of the child.

The mother filed for relief from the order and argued that the court erred when it considered the statue because the way MCL 722.31 is worded it indicates that the statute only applies when a party has joint legal custody.  The mother's attorney argued that when there is sole legal custody, the court has no option; it must grant the change of domicile motion.  The trial court stated that it believed that it had a duty to examine the best interests of the child.

As stated above, the Court of Appeals disagreed.  It stated that in 1963, the Supreme Court adopted a rule which mandates that every judgment involving child custody must contain a provision requiring the parents to obtain the court's permission before moving the child's domicile out of this state.  Then under the common law the court developed a four factor test to determine whether a divorce court should grant the request to change the domicile.  However, on January 9, 2011 the legislature adopted MCL 722.31.

This new statute stated that a parent cannot move the child's legal residence more than 100 miles from the current legal residence without permission from the court, however the parent could move less than 100 miles without the permission of the court.  Finally, the statute provided that this section does not apply where one parent has sole legal custody, which means that it is only applicable if the parties have joint legal custody.

The Appellate Court then went on to determine that the new statute preempted the previous common law considerations regarding moving the child out of Michigan.  It found that when a parent with sole legal custody seeks to move the child out of the state, the statute does not apply however the court must still exercise its discretion to grant or deny the request. 

Finally, the Court of Appeals stated that despite its above statement, it appears that the trial court “must approve the request without further ado, which seems to contradict the notion that trial courts have the discretion to grant or deny requests to move a child out of the state when there is sole legal custody.”  When applying this reasoning to the facts of the case at hand, the Court of Appeals held that even though the mother had to obtain the court's permission before she could move out of state, once she filed the motion for permission after her move, the court had to grant the request without considering the child's best interests with regards to the move.


There is now a new importance to obtaining joint legal custody as a party may move out of the state without permission of the court and without a consideration of whether the move is in the best interests of the child if there is sole legal custody.  While joint legal custody is routinely granted in divorce cases, it is not the same with respect to children born out of wedlock.  Therefore, particularly when one has a child out of wedlock, it becomes extremely important for the attorney representing a parent to seek joint legal custody.   Finally, the argument that the parent opposing the move must make is that the move will alter the established custodial environment which may allow that parent to seek a change of custody.

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