Life changes after a divorce or custody separation. Parents move on, start new relationships, take new jobs, and sometimes relocate. But when the court has entered a custody or parenting time order, that piece of paper can stand between you and your future and leave you asking “Can I move my child out of state?”
Who has the authority to move a child to another city? What about out of state? Do you need to go to court, or are you free to move?
Filing a motion for change of residence isn’t usually a parent’s top priority when a new life opportunity arises. Applying for jobs, searching for a new home, and researching school districts are usually more important to a mom or dad starting a new life. But forgetting to get the court’s permission could come back to haunt you later on.
Every child custody order sets the legal residence of the children it governs. Whether you need to file a Motion for Change of Residence before moving depends on whether you have sole or joint legal custody.
Moving Your Child Out of State With Sole Custody
If your custody and parenting time are set automatically by an Affidavit of Parentage, or if a trial court judge has awarded you sole legal and sole physical custody of your children, you do not need to ask the court for permission to move your child. However, if the move will interrupt the other parent’s court-ordered parenting time, you will still need to go to court to get a new schedule that protects the child’s relationship with both parents. Quite often, the adjusted parenting time schedule will give the non-custodial parent extended parenting time during the child’s winter and spring breaks, and over summer vacation. Regular telephone calls or video-conference visits can fill in the gaps during the school year.
Joint Custody Makes Moving Children More Complicated
If your co-parent has joint custody of your children (legal, physical, or both), your custody order or judgment of divorce will often contain language saying:
- The children have a legal residence with both parents
- Neither party will remove domicile or residence of the child from the State of Michigan without court approval.
- Neither party will move the children more than 100 miles away from their current residence without court approval. The so-called “100-Mile Rule” doesn’t apply if the parents are already living over 100 miles apart.
To get the required court approval, you will need to file a Motion for Change of Residence with the court. That is unless your co-parent will agree to the move.
Party Agreements to Move
Regardless of your existing custody arrangement, you can always move your child out of state if the other parent agrees. This is most common in cases where one parent doesn’t regularly exercise parenting time, or when the parties continue to work well together to keep the child’s best interests in mind.
If you decide to approach your co-parent about a move, make sure you offer to accommodate for their existing parenting relationship. A family lawyer can help you craft a proposal that a thoughtful parent can agree with, and make sure it gets filed properly with the court.
How a Court Decides a Motion for Change of Residence
The Child Custody Act includes a section explaining how judges are supposed to decide whether to grant a parent’s motion for change of residence. That law says the court must consider each of the following factors, paying special attention to the child’s interests in each case:
- How the move will improve the quality of life for the child and the relocating parent;
- How well each parent has complied with existing custody and parenting time orders. This factor includes whether the desire to move is motivated by a desire to cut the co-parent off from his or her parenting time schedule.
- How well an alternative parenting time schedule can preserve and encourage the relationship between the child and each parent. This includes the non-custodial parent’s likelihood to follow through with the new schedule.
- Whether the other parent is objecting to the move in order to get an advantage on child support.
- Whether there is a history of domestic violence against or witnessed by the child.
A recent published Michigan Court of Appeals decision, Yachcik v Yachcik, explains that these factors are only Step 1 in the court’s process. If you have filed a Motion for Change of Residence, and the court agrees that these factors are met, the judge must then take three more steps:
- Decide whether an “established custodial environment” exists with either or both parents. This means that the child naturally looks to a parent for guidance, discipline, and emotional support.
- Determine whether the proposed move will interrupt that established custodial environment (usually by cutting off a child’s regular access to the parent).
- Determine whether the change in domicile is in the best interests of the minor child.
Why Skipping the Court is a Bad Idea
With all those steps, you may be inclined to skip the court, move, and beg forgiveness later. But doing that could hurt you in the long run.
First, if the court grants your motion to move out of state, it will likely mean an increase in overnights. That could mean your child support will go up (depending on the relative incomes of the parties). By avoiding the court, you could be selling your child’s financial situation short.
More importantly, you will be violating a court order and actively frustrating your co-parent’s relationship with his or her child. This generally upsets non-custodial parents and causes them to rush to court to file a motion to enforce the existing parenting time schedule. The fact that you moved without asking will work against you, and depending on the best interest factors, could cause you to lose custody of your child all together.
Don’t take shortcuts when it comes time to move your child out of state. Talk to an experienced family lawyer for help approaching your child’s co-parent, and filing a motion for change of residence. By doing things the right way, you will respect the court, and be more likely to get what is best for you and your children in the end.
Family law attorney Lisa J. Schmidt, represents parents across Metro Detroit. She can help you establish custody or file a Motion for Change of Residence. If you need to move out of state, contact Schmidt & Long, PLLC, for a free consultation.