If you are divorced and have children, you are probably aware that in most cases neither parent is allowed to move more than one hundred (100) miles from where they resided at the time of the divorce without the agreement of the other parent or the order of the court. Unfortunately, it sometimes becomes necessary to relocate after a divorce due to a change in employment, a new marriage or other reasons. When that happens, if the other parent does not agree to allowing the move, then the parent seeking to move must file a motion requesting that the court enter an order allowing the move.
The Complicated Law Behind a Relocation After Divorce
If a parent has sole legal custody (which is unusual), then the parent should be able to file the motion and the court should basically grant it at the first hearing. However, if you have joint legal custody, which is the situation in most cases, then the process is very complicated and will require an evidentiary hearing which is basically a trial in front of the judge about this issue.
When a party seeks a change of domicile over 100 miles, that parent must first prevail on the following factors:
(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.
But it does not end there, if the court agrees that the above factors weigh in favor of granting the relocation, that is just the first of four different steps the court must take before granting the motion. It must still make a determination of whether a custodial environment exists with each parent. This inquiry focuses on the relationship between the child and each parent, rather than how much time the child spends with each parent. Then, if the court determines that a custodial relationship exists with the non-relocating parent, the court must determine whether allowing the relocation would alter that established custodial environment. Finally, if the court finds that the relocation would alter or modify that custodial relationship, then the court must make a determination whether the change in domicile would be in the child's best interests, which requires an analysis of the custodial best interest factors.
There is considerable risk in filing the motion to relocate and it should be done far in advance of the anticipated move date. The risk is that the judge may decide that while the change of domicile might be good for you and the child, it may still ultimately decide that it would be better to grant the other parent primary custody rather than to allow the move. If the parent seeking relocation has not moved, that parent may reconsider the relocation, remain in the state and continue with the former parenting time and custody; It is imperative to file the motion well in advance, because this is obviously a complicated and difficult decision for the judge and it requires presentation of a significant amount of testimony and evidence by the parties. if the court has not made the decision before the move date and the parent moves, that parent runs the risk of having the judge decide to deny the relocation (as far as taking the kids with, a parent can always move - just not always with the kids) and ordering a change of custody after the relocating parent has committed financially to the move.
Contact a North Oakland Michigan Family Law lawyer for Help
If you are contemplating a relocation or If you are contemplating a divorce, you should consult with a Michigan family law lawyer about your case to discuss your options and begin to assemble your case. Your situation is unique. For that reason, it is usually best to meet with a North Oakland Michigan family law lawyer as soon as you consider taking action. Schedule a consult with our Michigan family law lawyer today. Understanding your legal rights and your options is one of the best ways to protect your best interests and the best interests of your children.