Marriage vs. Moving: A Child Custody Tale of Warning

When you’re a parent with joint custody, you lose one of the most fundamental freedoms that Americans enjoy: the freedom to live where you want to. While it’s not technically part of the Constitution’s list of explicitly-granted freedoms, the right of moving freely around within the country has been 1823, the Supreme Court has maintained solidly that the freedom to move is a Constitutional right, but that the enforcement of that right is a State affair, citing the Comity Clause. But the family courts of every single state agree that the best interests of the child trump the parents’ freedom to move to a new place of residence.

This means that in order to move, a parent with joint custody over a child must prove that the move is in the child’s best interest. Generally, if the other parent agrees that the move will help the children, the court won’t fight it — but of course it’s far more often the other parent does fight the move, because it usually means an annoying rewrite of the custody schedule and agreement.

These cases can be particularly tough to disentangle, as every significant change to the life of a parent has several independent ripple effects through the life of their children, and like any ripples, they can sometimes amplify each other — and at other times, they can completely cancel each other out.

A Clear Example
In a case that one of my assistants found on the website of another local law firm (Aldrech Legal Services, to be precise), a perfect example of these canceling ripple effects was brought to light. The short version is that a woman with joint custody got married to a very supportive man who happened to live two and a half hours north of her current home.

She wanted to move north, naturally, and she argued in front of the court that the move would be beneficial to the children because she would be able to devote her full time to motherhood, as her husband would support her financially. A small host of other details set aside, the court found against the move, with a significant deciding factor being that the woman had already married, and thus was presumably already benefiting from the financial support of, her new man. Thus, the disturbance to the children’s relationship with their father would be greater than the benefit of allowing the move.

Had the woman requested the right to move first (and established before the court that her marriage and thus the financial support was dependent on the court allowing the move), the case might have gone very differently.

The 100-Mile Rule
It is worthy of note that there is a significant exception to the rule that prevents a parent from moving. MCL 722.31 allows (with a bunch of exceptions, see the text itself at the link) a parent to move freely provided the move:

  • Doesn’t cross State lines, and
  • Doesn’t take the parent more than 100 miles away from the other parent’s residence.

This means that the woman in the above situation might not have been able to move directly to her new husband’s current residence, but she could have moved most of the way there. It’s quite likely that wouldn’t have helped her situation much, but it’s worth pointing out that the option exists.

If you have a child in joint custody, and you feel like a significant move would be in their best interests, get in touch with Gucciardo Family Law today; we can help!

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