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What if the parent does have sole legal and physical custody. To move out of state do the factors still need to be considered???

Farmington, MI |

Mom has sole physical and legal and wants to move to a different state. Dad only exercises about 60% of his parenting time but wont consent. Do the factors need to be considered?

Attorney Answers 3

Posted

Additional information would be helpful. Not sure what you are talking about when you say "the factors". But, if you have sole custody pursuant to court order, then you probably have a clause in the order stating that you cannot move the child out of state without the prior approval of the court.

If that is the case, you do need to file a motion with the court that has jurisdiction over your case for permission to move the child out of state. You will need good reasons for doing so. Such reasons can include that you or your spouse have a significantly better job offer out of state; that you or your spouse are being transferred by their current employer, etc.

If you ex is exercising his visitation, be prepared for a fight.

Good luck to you,

John J. Keenan

This response applies to Michigan law only. This initial response to your question(s) is for general purposes, only, and is based upon the limited information you have provided. Therefore, this general answer should not be relied upon as a reason for your action or inaction. This response does not establish an attorney-client relationship; such a relationship may only be established by the signing of a written retainer agreement, and the payment of the agreed upon retainer. Please call me, or another attorney of your choice, with more details, and for an appointment to discuss same. Thank you for this opportunity to address your question(s).

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Posted

I fought this battle in Oakland County and won the right for a woman to take her daughter out of the country. Typically its a 2 part consideration (one about the factors to change custody and one to allow the move). However, since your mom already has sole legal and physical custody the factors for change in custody do not have to be considered.

However, MCL 722.31(4) governs the change in domicile of the parties legal residence when it sets out the following factors:

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.

An appeals court will review a circuit court’s findings regarding the above factors with and abuse of discretion. Brown v. Loveman, 260 Mich App 576, 600; 680 NW 2d 432 (2004). A circuit courts findings of facts will be affirmed unless the “evidence clearly preponderates in the opposite direction”. Mogle v. Schriver, 241 Mich App 192, 196; 614 NW2d 696 (2000).

If you do not have a good attorney get one. Further, even though I do not regularly practice family law I beat out several family law lawyers about this issue. Expect a fight, be very prepared and address the factors.

Please note that I answered this question with general knowlege of the law and with limited disclosure from you, my answer does not create an attorney-client relationship and I cannot be held responsible for how you, the asker, use the information provided. If you want to contact me directly and retain my services you may through my listing on this site or at 248-901-0750 or james@weineresq.com.

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Posted

Actually, the relocation limitation in Michigan does not apply when there is sole legal custody:

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 not change 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.

If the other parent has parenting time, however, you will probably need to have the court modify that arrangement.

You should consult with a qualified family law attorney before committing to your move.

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