Yes, unfortunately – these cases are more common than one would think. Although Michigan law requires a custodial parent to obtain court approval before moving with his or her child to another state, parents tend not to get approval because all agree to the move, they do not know about the law, they overlook the law in their custody order (it is usually a boilerplate clause) or they choose to ignore it.
However, you must bring this issue to the court’s attention if you want to enforce your ordered rights; your court will not enforce its order unless a party brings to the court’s attention something that needs enforcing – there are simply too many orders, and too many things that happen beyond the purview of the bench, for the court to do otherwise.
How you bring this issue to the court’s attention, however, will depend on the severity of the situation – was it willful? a legitimate misunderstanding? a one-time occurrence? In addition to consulting a lawyer in your area for a thorough review of your case and the laws applicable to it, consider these options:
Informal Court Enforcement: Research the resources in your area for parenting time and custody enforcement. If your case is in the Friend of the Court system, you do not need a motion hearing before a judge to enforce your order. Other resources, such as parenting time monitors, counselors, and custody mediators, exist. For example, parents who have missed visitation with their children may file a complaint to request make up time within 56 days of the missed visit. A parenting time counselor will review the complaint and issue an opinion in writing to both parents within 21 days. County resources vary, however, so you should consult with a lawyer to learn about the resources available to you.
Contempt: If your ex willfully moved in violation of the court order, consider filing a motion to have your judge hold her in contempt for disobedience. The judge will order her to comply, perhaps with make up parenting time, and you will create a record of your denied time in the event you need to modify the order later. The judge may also order her to pay fines and attorney fees an/or to spend time in the county jail. The procedures for these motions vary by county, too, so you should consult with a lawyer in your area to learn how, if at all, to pursue contempt.
Motion to Modify: If your ex purposely moved to deny your parenting time or if you suspect something about your current order just does not “work” and a change would be better, consider filing a motion to modify physical custody or parenting time. In general, your unhappiness with the order is not enough; you must show a proper cause or change in circumstances since the last order to justify the change. The court must determine that a change is in your child’s best interests, and if the change also removes the child from an established custodial environment (the place the child associates with “home,” where the child gets care, comfort, guidance and life’s necessities), you must prove this by clear and convincing evidence. These motions generally require more time, in and out of court, than the resources mentioned above and thorough preparation. The long-term benefits could be worth the effort, however, if you are legitimately unsatisfied.
What will your outcome be? That depends on the facts of your case and the way you, or preferably your lawyer, argue them. A move in derogation of a court order is usually enough to hold the moving parent in contempt, but it is not, absent more, enough to modify custody or parenting time.
That’s right – it is possible for a parent to disregard a court order and still retain physical custody or parenting time. This is because the focus for custody and parenting time decisions is what has happened to the child, the child’s best interests, irrespective of an unauthorized moved. You should not do this, however, because the contempt consequences (fines, jail time) are severe.
Be advised, although I am licensed to practice law in Michigan, I cannot give you legal advice without reviewing your case in full. Do not rely on this answer as establishing an attorney-client relationship, and contact an attorney immediately for legal advice and case-specific suggestions. Cordell & Cordell does practice in Michigan. Thank you for submitting your question.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.