The Court of Appeals has given practitioners in Michigan a ruling regarding the so-called “100-mile” rule, MCL 722.31. The recent case is Grew v Knox II, unpublished decision per curiam of the Court of Appeals, issued Frebruary 24, 2005 (Docket No. 258339).
The “100-mile” rule, generally, provides that if parents have joint legal custody, neither parent may relocate if the move involves more than 100 miles from their respective homes.
The question arises, however, that since the statute was enacted just a few years back (2001), does the statute apply to cases where the judgment/order entered before the date of enactment? In other words, does the statute apply retroactively?
The COA ruled that it does.
It pointed out that the statute applies to all cases where a parent wishes to change the legal residence of a child “whose custody is governed by court order.” There is no language in the statute which restricts its application only to motions filed subsequent to the enactment of the statute.
Moreover, the Court used the following public policy language in support of its decision:
” With MCL 722.31, the Legislature has adopted a policy limiting the ability of a parent to unilaterally alter the legal residence of a child under a current custody order and established the mechanism by which courts are to evaluate petitions (sic) to change the legal residence of a (sic) such children.”
The COA also rejected the argument that the law abrogates or impairs vested rights or creates new obligations, because a cause of action only becomes a vested right when it accrues and all the facts become operative and known. Since the parent’s action in the case did not actually accrue until after the enactment of the statute, when she petitioned the court for a change of domicile (from Monroe to Traverse City), the statute applied.
Although unpublished, the case is persuasive and may well be the law on the issue at this point.
Query: Who has experience with whether the prohibition of moving more than 100 miles grants a parent the right to move anywhere less than 100 miles? My reading of Brown v Loveman leads me to believe that if the move negatively impacts the parenting time of the non-moving parent who has nevertheless created an established custodial environment, the move cannot be allowed absent clear and convincing evidence that the move is in the child’s best interests. The language in Brown seems so much more convincing than the convoluted inverse-reading one must engage in to create a right to move less than 100 miles on a whim.
Any thoughts?
Being a practicing Arizona family law attorney, we are quite familiar with the “100 Mile Rule”. It has been codified for some time now and is located at A.R.S. Section 25-408.
The Statute specifically states that “C. If by written agreement or court order both parents are entitled to custody or parenting time and both parents reside in the state, at least sixty days’ advance written notice shall be provided to the other parent before a parent may do either of the following: (1) Relocate the child outside the state; (2) Relocate the child more than one hundred miles within the state.” There are also specific notice requirements that must be met prior to relocation. For instance, “D. The notice required by this section shall be made by certified mail, return receipt requested, or pursuant to the Arizona rules of civil procedure. A parent who does not comply with the notification requirements of this subsection is subject to court sanction. The court may impose a sanction that will affect custody or parenting time only in accordance with the child’s best interests. E. Within thirty days after notice is made the nonmoving parent may petition the court to prevent relocation of the child. After expiration of this time any petition or other application to prevent relocation of the child may be granted only on a showing of good cause. This subsection does not prohibit a parent who is seeking to relocate the child from petitioning the court for a hearing, on notice to the other parent, to determine the appropriateness of a relocation that may adversely affect the other parent’s custody or parenting time rights.”
As you might imagine, there is much litigation involving the “100 Mile Rule”, especially since Arizona’s population is quite transient.
By the way, all of us at http://www.nrglaw.net are avid readers of your blog. Keep up the good work. If you are interested in any issues relating to Arizona Divorce and Family Law, check out http://www.azfamilylawblog.com.
I have a question, hoping somebody might know the answer to this one. I’ve talked to two attorneys and neither would give me a straight answer as to what is legal. Here’s some background:
I have a son (five months old). The boyfriend I had at the time he was conceived, although obsessed to a strange degree with being a father, also out of bitterness toward me refused to acknowledge paternity when my son was born or be on the birth certificate as the father, although I asked him to please do so, for my son’s sake. I allowed him visitations with my son until my son was six weeks old, at which point he became very rude and blatant in his claims that the child might not be his. At that point, I told him that he could not see my son until I had a paternity test showing that he was in fact his father. I expected him to arrange this testing right away (based on what he was saying). However, it has been four months since that time and only two days ago did I receive paperwork requesting that paternity testing be done. I was not served with this paperwork and have not actually seen it, as it was mailed directly to my step-father, who is an attorney.
My current boyfriend, who has been with me since I was four months pregnant and has helped me to provide a home for my child, recently got a very good job offer in Florida. If he takes the job and I go with him, he’ll be making enough money that I can stay home with my son instead of working six days a week as I do now.
Everything I can find in Michigan law (that’s where I live) prohibits me moving more than 100 miles away from the father when an order has already been established. I cannot find any documentation to tell me that I am currently prohibited from moving out of state since paternity has not even been established, or if in so moving I would be penalized in some way (such as having my son taken away in retribution). Does anybody know the legal standing on this? I don’t want to do anything illegal, but at the same time I want to do what’s best for my son.
I live in Michigan, too. I am divorced with two children. Their dad and I have always lived in the same small town. I have primary physical custody, and we share joint legal custody. He has liberal parenting time via a court order which I initiated. The situation now is that I am engaged. My fiance has trouble finding a well-paying job in this small town, but was offered a lucrative position on the other side of the state. My question is this: Can I move? Will I be able to move with my children? I know I’m not supposed to move further than 100 miles, and that’s fine, but if I try to move, what legal recourse will my ex-husband have? I know that he will do everything in his power to prevent me from moving at all. I feel very trapped, and I really want out of this small town where my ex-husband’s extensive family is very intrusive. It is also virtually impossible for my fiance to be successful here. I will have much more opportunity in a larger town as well. Will I have to be married before I can move? Can my ex-husband prevent me from moving even if it’s less than 100 miles away? I just want to be ready when the time comes to deal with this situation.
I live in Michigan and am generally familiar with family law in our state, specifically with the CCA of 1970, the UCCJEA, and the Federal PKPA statute. Here is my situation:
In 2000, my ex-girlfriend left here to relocate to Tennessee to be near her parents. She took our 2 year old Daughter with her, despite my repeated objections. At the time, no formal Order for Custody, Visitation, and Support had been established. Although a document entitled “Affadavit of Paternity” had been signed by me, and a provision within the document claimed that “the Mother, if at the time of the Child’s birth, is unmarried, custody of the Child is presumed to be with the Mother”, an Attorney eventually told me that document does not establish legal custody for the purposes of litigation.
In essence, I was told, legal custody belongs to whomever has physical custody of the child at that moment. I was free to return our Daughter back home to Michigan as long I was able to obtain physical custody.
A lot of drama ensued, none of which I care to elaborate on in this forum at this time, but suffice it to say we had to go to court. I immediately filed for custody the following day back in Michigan, and likewise she did the same in Tennessee a few days later. We eventually won the jurisdictional battle, but it took six months to do so. I was advised that it was only now that the court would docket the case, and that it was going to be almost another year before it was heard before a judge. My attorney advised me it would be better to settle for visitation than to continue, as my ex had enough time with our Daughter in Tennessee to establish a continuing custodial environment; that the mounting legal bills and child support fines etc were only going to continue and the benefit of going to trial was not worth it.
I want to know how, after reading the COA’s ruling above, the 100-mile rule may be applied retroactively in my case, and what my ex’s obligation will be. Will she be required to move back to Michigan? Surrender primary custody? Sacrifice her support benefits? Does anybody have any experience with this that would be willing to take a few minutes to discuss a few more details and share some legal insight?
My Daughter and I thank you in advance.
My Daughter, my Fiance`, and I lived in Traverse City, MI. She (my Daughter) was born here in T.C., and the case is in Traverse City (Grand Traverse County). On father’s Day 1997, I came home from work, found a note that said… “We have moved to Owasso, MI, bye.” She caught wind of the new 100 mile law going into effect, and moved before the ruling went into effect. I never read much into it, till now. I have to drive to & from West Branch, MI. twice every other weekend for visitation. This causes 1) NOT allot less time to spend with my Daughter, due to “drive time” BOTH WAYS. It also costs me so much money in gas now, I can’t afford to pick her up.
My question is… Would this ruling effect my situation? And yes, I have “Joint Custody”
Thanks -A- Million for any information on this subject.
Dan Stevens
Traverse City, MI.
My ex-husband and I have a daughter together. We divorced in 2004 and to my surprise, when I recieved the papers, my ex-husband put a court order on me pertaining to this 100 mile domicile rule. His reason for setting the domicile order was he was afraid I was just going to “run with her” down to Maryland where I am originally from. That was not my intention and I would not do so because of the fact that she loves her father. However, I married a man from the Lansing area, (I’ve been living in Brimley since I was 11), and most of his family is down there and I notice that there are lots of wonderful opportunities there for jobs. Since the divorce, it has been very hard to live in the same town as my ex-husband, he was a very controlling man when we were married and still tries to control me even though we are not married anymore. My husband has accepted a wonderful job in the Lansing area, making more money than he would working up here, and it would make it as to where I could be a stay at home mother and be able to continue providing a stable enviornment for my child. We had a meeting with the friend of the court today, and although it was just a mediation, my ex-husband will not agree to have my daughter move down to the Lansing area with me. The schools where I will be living are wonderful. Almost the best in the State, they have been awarded the governer’s golden apple award and their meap scores and something to be very proud of. I know that I need to keep in mind that this needs to be in my daughter’s best interest. However, when we were talking to the Mediator today, he said that schooling should not be an issue, you just graduate and get your diploma and start working. As a concerned parent, I would rather see my child succeed past high school and go to college as to where she does not need to depend on anybody and be able to bloom in her financial status. I only want the best for my daughter, and it seems he only wants her to be around for him, which, in a sense I can’t blame him because I couldn’t live without my daughter, but I want to see her grow, not only physically, but academically. She is a very smart child and I do not want to do anything that would interfere with this. My husband shows alot of support for her. He spends alot of time with her. And before I filed the motion to have the domicile rule lifted, he was rarely seeing her. After I filed the motion, he is now making sure he sees her everyday. What about the times he did not come and see her? Why did I have to call him to see if he was going to spend his “parenting time” with her? Shouldn’t that have been his own responsibility? I am not denying her seeing her father, what I am trying to do is come to an agreement with him that not only benefits us as parents, but benfits my daughter. I have done everything to compromise with him as to paying all transportation costs and bringing her up to the area to spend time with him. I’m at the end of my rope and I don’t know what else to do. All I want is for my daughter to grow up well educated and I want to see her be successful. I am a very supporting parent and would do anything for her. My husband has supported me since we have started this. Does anybody have any advice?
My ex-husband and I have a daughter together. We divorced in 2004 and to my surprise, when I recieved the papers, my ex-husband put a court order on me pertaining to this 100 mile domicile rule. His reason for setting the domicile order was he was afraid I was just going to “run with her” down to Maryland where I am originally from. That was not my intention and I would not do so because of the fact that she loves her father. However, I married a man from the Lansing area, (I’ve been living in Brimley since I was 11), and most of his family is down there and I notice that there are lots of wonderful opportunities there for jobs. Since the divorce, it has been very hard to live in the same town as my ex-husband, he was a very controlling man when we were married and still tries to control me even though we are not married anymore. My husband has accepted a wonderful job in the Lansing area, making more money than he would working up here, and it would make it as to where I could be a stay at home mother and be able to continue providing a stable enviornment for my child. We had a meeting with the friend of the court today, and although it was just a mediation, my ex-husband will not agree to have my daughter move down to the Lansing area with me. The schools where I will be living are wonderful. Almost the best in the State, they have been awarded the governer’s golden apple award and their meap scores are something to be very proud of. I know that I need to keep in mind that this needs to be in my daughter’s best interest. However, when we were talking to the Mediator today, he said that schooling should not be an issue, you just graduate and get your diploma and start working. As a concerned parent, I would rather see my child succeed past high school and go to college as to where she does not need to depend on anybody and be able to bloom in her financial status. I only want the best for my daughter, and it seems he only wants her to be around for him, which, in a sense I can’t blame him because I couldn’t live without my daughter, but I want to see her grow, not only physically, but academically. She is a very smart child and I do not want to do anything that would interfere with this. My husband shows alot of support for her. He spends alot of time with her. And before I filed the motion to have the domicile rule lifted, my ex-husband was rarely seeing her. After I filed the motion, he is now making sure he sees her everyday. What about the times he did not come and see her? Why did I have to call him to see if he was going to spend his “parenting time” with her? Shouldn’t that have been his own responsibility? I am not denying her seeing her father, what I am trying to do is come to an agreement with him that not only benefits us as parents, but benfits my daughter. I have done everything to compromise with him as to paying all transportation costs and bringing her up to the area to spend time with him. I’m at the end of my rope and I don’t know what else to do. All I want is for my daughter to grow up well educated and I want to see her be successful. I am a very supporting parent and would do anything for her. My husband has supported me since we have started this. Does anybody have any advice?
I had a baby with a man 8 years ago, we were never married and we only dated 1 1/2 years. We both lived in a small town in Michigan. He was awarded minimum parenting time, every other weekend and for two hours on every Wednesday, and was awarded joint legal custody which only gives him the opportunity to have partial decision making in Religion, Health, and Education. The 100 mile rule is in the court order. He moved about 70 miles away about 1 year ago at that time he stopped using his Wednesday parenting time.
Due to the Economy in Michigan, my husband and I both lost our jobs. My husband had been offered a great job out of State. My husband took the job, moved and I would have to stay in Michigan until the Court would allow me to move because the Father protested the move. I filed a motion to move about 7 months ago and have been in court ever since. He is always late on his child support and did not pay for several months until we petitioned the court for the move
He has offered no valid reason to me for not allowing the move other than the long distance parenting schedule would force him to have to have a babysitter in the summer. He has not stated to the court any reason not to allow the move but has only tried to destroy my husbands and my character.
It has now been 7 months, my husband and I have been living apart and the court has still not made a decision. This has had an adverse affect on not only our marriage, my child’s life, but financially having to support two households, lawyers fees and travel expenses when this Job opportunity was intended to better our life. This law was intended to maintain a relationship between parent and child, but I feel this law needs to be reevaluated because it is unconstitutional. I should have the same freedoms and opportunities as any other American citizen has, Life, Liberty, and the pursuit of Happiness. I have always supported and encouraged a strong relationship between father and child but I also have a responsibility as a mother to support my child and give my child the best life can offer.
How much longer am I going to be forced to live like this? Will the court even allow the move? What needs to be done to have this Law revised? Is this law even Constitutional and if so what about the Bill of Rights? I feel like I am being held prisoner without even committing a crime! Please Help. Any information would be greatly appreciated . Thank You.
my question is i live in macomb county michigan and my daughters father as well. we live 18.98 miles from each other, am i required to meet him halfway? what is the general mile requirement in order for both parents to meet at a halfway mark? our court order says for him to pick her up at my home and he says we need to meet halfway.
Hey Dan It’s your old buddy Adam. I’m not sure about that , but if you can prove in a court that it would be beneficial to the child to move more than 100 miles away, the courts can and do grant special permissions. Dan call me sometime. I miss you.
Question: is the 100mile just within Michigan boundaries or can you move out of state?!?
The 100 mile rule is for the benifit of the children to maintain a bond to both parents in raising the child and to grow up with both parents. Not to be ignorant(but) it does sound like most people on here that I have read about and their reasons for these questions, are all about themselves and not the children at all. the Facts do show that children need both parents in their lives or they have a very good chance that the will have many problems in their own life because of your mistakes. Our children grow up very fast and before you realize it they willl be out on their own. Don’t screw up their lives any more than you have, think of them, not yourselves. Oh , and by the way, I realize the truth hurts, So be upset at my comments or say what you like. But the truth is this.
Question: I reside in Arizona. I moved up north from phx area in hopes that the father would be able to help out more w/ our daughter and spend more time w her. After a year of dealing with cost of living changes (higher) and realizing he only spent about 4 or 5 days more than before I moved. I am now engaged and his job is in phx so because I don’t have to work I can spend more time with her and be able to pick her up from school as opposed to her having to spend all day kindergarten and after school care until I get off work up here. I feel moving back is in the best interest for our daughter. I did notify him almost 2 months ago and he has now filed something to keep me from moving. I don’t remember what our prior parenting plan was because she was so little. However I am moving less than 100 miles away….and have signed a lease to move by the 1st. Can he still prevent me from moving?