Long-Distance & Out-of-State Relocation

Case Discussed:

Flick v. Marsh

MiLW No. 08-90656

Miichigan Court of Appeals - Unpublished Case

Two people have a child, divorce and re-marry. As in many cases, one of the parties later wished to move out of the state. Out-of-state relocation of children subject to a custody order is governed by MCL 722.31.

In the case highlighted today, the divorced parents had exercised parenting time with some success, but the proposed relocation of the child with the Plaintiff/Mother was strongly contested, with the Defendant/Father arguing that a relocation from Michigan to Massachusetts would create "strain" on the relationship between the Defendant/Father and child, and that the move would prevent a realistic opportunity to preserve and foster a relationship between Defendant/Father and child. The Defendant/Father also claimed that the hidden purpose of the move was to alienate the Defendant/Father and replace him as the child's father with the Plaintiff/Mother's new husband. The parties both testified that the Plaintiff/Mother had previously refused the Defendant/Father his parenting time.

What to take away from this case?

These sort of outcomes may shock some people. The Court accepted that the relocation was in the best interests of the parties' child primarily due to the anticipated increase in income of the Plaintiff/Mother's new husband. The trial court also found the Plaintiff/Mother's testimony that a move to Massachusetts would improve her plaintiff's employment opportunities, the potential for superior education for the child, and the potential for improvement to the Plaintiff and child's living situation. The Michigan Court of Appeals (MCA) deferred to the trial court's determinations as to the credibility of the parties' testimony.

You may notice that the only item of testimony that directly relates to the child is the potential for superior educational opportunities. The rest of the items are also potential improvements, and are not directly impacting the child.

If you are a party to a Michigan custody order, you could find yourself in a similar position as the Defendant/Father! Despite following the previous custody scheme, despite being previously denied parenting time by the Plaintiff/Mother, and despite the Plaintiff/Mother's testimony that the bulk of reasoning for the move is to potentially benefit her, the Defendant/Father will now exercise parenting time on summer, winter and spring breaks, (as well as twice per week by webcam or telephone). The MCA acknowledged the Defendant/Father would lose parenting time due to the change, but found that vacation times and twice-weekly telephone contact was sufficient to maintain a close relationship.

Closing Thoughts

  • Cases like Flick v. Marsh should serve as a stark reminder that parenting time awarded in a custody order is not anything like a guarantee for the future.

  • MCL 722.31 permits the Court to consider factors that do not directly impact the child (i.e. potential salary of a non-parent/stepparent)

  • Would a Father be permitted the same opportunity to relocate as the Mother in Flick was granted?

  • In the absence of absence of a clear abuse of discretion, the Michigan Court of Appeals will accept the trial court's finding of fact.

Full opinion available here, courtesy of Justia.com

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