LawRefs Customized Legal Information
Attorney Renee C. Walsh

Is a Motion Required to Take a Child out of State when there is an Order in Place

According to the Michigan CHILD CUSTODY ACT OF 1970, MCL 722.31 Legal residence change of child whose parental custody governed by court order, Sec. 11.

(1) A child whose parental custody is governed by court order has, for the purposes of this section, a legal residence with each parent. *Except as otherwise provided in this section, a parent of a child whose custody is governed by court order shall notchange a legal residence of the child to a location that is more than 100 miles from the child’s legal residence at the time of the commencement of the action in which the order is issued.*

(2) A parent’s change of a child’s legal residence is not restricted by subsection (1) if the other parent consents to, or if the court, after complying with subsection (4), permits, the residence change. *This section does not apply if the order governing the child’s custody grants sole legal custody to 1 of the child’s parents.*

(3) This section does not apply if, at the time of the commencement of the action in which the custody order is issued, the child’s 2 residences were more than 100 miles apart. This section does not apply if the legal residence change results in the child’s 2 legal residences being closer to each other than before the change.

(4) Before permitting a legal residence change otherwise restricted by subsection (1), the court shall consider each of the following factors, with the child as the primary focus in the court’s deliberations:

(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.

(5) Each order determining or modifying custody or parenting time of a child shall include a provision stating the parent’s agreement as to how a change in either of the child’s legal residences will be handled. If such a provision is included in the order and a child’s legal residence change is done in compliance with that provision, this section does not apply. If the parents do not agree on such a provision, the court shall include in the order the following provision: “A parent whose custody or parenting time of a child is governed by this order shall not change the legal residence of the child except in compliance with section 11 of the “Child Custody Act of 1970”, 1970 PA 91, MCL 722.31.”.

(6) If this section applies to a change of a child’s legal residence and the parent seeking to change that legal residence needs to seek a safe location from the threat of domestic violence, the parent may move to such a location with the child until the court makes a determination under this section.

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What does this mean? According to this, legal residence of the child cannot be changed more than 100 miles unless with the court’s permission. However, also according to this law, the court’s permission is not required if the order governing the child’s custody grants sole legal custody to the parent wanting to move.

An interesting facet to this is that the Friend of the Court will enter Orders for Support which include Orders for Custody. For example, a Support Order might provide “custody of the minor child is vested in X”. Since the court does not distinguish between physical and legal custody, one interpretation is that it did not mean to distinguish between the two, but rather meant to provide X with sole physical and legal custody, with reasonable visitation to Y. Therefore, no motion would be required in this case.

Furthermore, and this is also interesting, the law requires under section 5 that each order determining custody such as the Support Order referenced above, shall include a provision stating the parent’s agreement as to how a change in the child’s residence will be handled. The Friend of the Court has failed to comply with the law as where it can be argued that the Support Order violates the section by failing to include the provision providing notifying of the Child Custody Act, and thus one cannot be said to know about the Act so as to be required to abide by it.

Discussion:

  1. Dear Tressa:

    You will need to bring your issue to the Friend of the Court because your move to Florida would affect the child’s father’s visitation rights. Getting married would present as a stable relationship between you and your significant other and stability would be considered in the best interests of the child.

    Dear Mom:

    Since you have already moved, you should merely contact the Friend of the Court, tell them the reason you were forced to move, and ask them to keep your address confidential before giving them a new address. A consequence of moving without permission is not expected given your circumstances.

  2. I have sole legal and physical custody of my daughter and her father has no parenting time. I have moved the child out of the state because of the abuse my daughter and I received from him Do I need permission from the court to mover her and because I have already moved what penitlies do I face?

  3. Hi I was wondering what are my legal rights about moving out of state. My daughter is 3 1/2 , her father and I have been split since before she was born and as of now we share 50/50 visitation. I live in michigan and he lives in indiana. My fiance lives in Fl and is in the airforce. We want to start a family but are restricted to this 100 mile radius. I also have a domestic violence case against her father right now. If my fiance and i were to get married would this help sooner or ? Please help..

  4. I have main physical custody, and joint legal custody, of my two children. My boyfriend and I have discussed moving in together, but he lives 134 miles from where I originally filed my motion of divorce, custody, etc. Since our agreement was originally where I had sole legal and physical custody of the children, and was just recently changed, and only becuase I agreed to it, if I can prove it will be better for the kids and I, what are my chances of getting my move approved and how do i go about doing that? My ex only sees the kids every other weekend anyhow with school starting.

  5. If the order speaks to moving than you are bound to follow the order. Sounds however as if your ex-wife has no interest in the matter. If that is true, it is unlikely she would invoke the court’s attention to the matter. In the worst case, she could file a motion to hold you in contempt, to which you could respond that since she had not exercised any visitation and you had limited financial resources, you assumed that there would not be a problem. Alternatively, you could contact the Friend of the Court and get there permission via a motion.

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