Many divorced parents with custody of children are considering moving out of Michigan in order to accept new employment. Many times these parents are required to move out of the state in order to find acceptable employment to support their families. This issue becomes complicated when it involves minor children and the parents share joint legal or physical custody. I recently discussed this issue with a friend whose ex-wife was planning to move from Rochester Hills, Michigan to Ohio.
In cases where the divorced parents share joint legal custody, which is true in almost all cases, any party moving more than 100 miles or out of Michigan, even if less than 100 miles, must obtain court approval before they are allowed to move. This includes the non-custodial parent, so that even if one is not have primary physical custody they must still obtain court approval before they move if they share joint legal custody.
The party that wishes to move, must basically show by a preponderance of the evidence, which in layman’s terms means, a little more likely than not, that they have met statutory requirements. This issue becomes even more complicated if the parents share joint physical custody of the child or the court decides that there is an established custodial environment with both parents.
If the parents share joint physical custody of a child, then after the court determines that a parent may move by a preponderance of evidence, the court must then make a decision regarding the change of custody. If the court finds that from the view of the children the move would change the custodial environment, then the court must make a decision regarding a change of custody.
The idea of a custodial environment means that even if the parents do not actually share physical custody the following problems regarding a change of custody may apply if over an appreciable period of time the child looks to both parents for love, affection, guidance and other similar types of parental support.
If the court finds that there is an established custodial environment with both parents as described above, the court will revisit the custody issue and the parent that wants to move must prove that it is in the child’s best interests to change custody by a clear and convincing evidence standard, which is significantly more stringent than the preponderance of evidence standard indicated above.
The best interests of the child is really a list of 11 different factors and a catch all phrase of any other factors that the court deems relevant. This may be very difficult for a parent to prove and if the parent does not, then despite the finding that the above factors have been met allowing the move, the court will change custody of the child to the parent that is not moving. This is true even where the child spent more time at the home of the parent that proposes the move so long as the court finds there is an established custodial environment with both parents. This may not seem fair to a parent that is moving because they cannot find employment, however, the focus is on the children, not the parent that is facing the hardship.
None of the above applies if the parents do not share joint legal custody. Unfortunately this means that if one is going through a divorce and there is a good reason to believe that they will have to move for employment or other reasons, it would be prudent to fight for sole legal custody for the parent that is contemplating such a move.