Ex Wants to Take My Legal Custody Away

My question involves a child custody case from the State of: Michigan

This case takes place in Michigan, but I reside in Oregon. My daughter lives with her mother in Michigan. Today, my ex served me with a petition to have the court review our legal custody arrangement. Looks like a power grab. This move comes on the heels of a heated, six month dispute over orthodontic work that she had done for our daughter without consulting me whatsoever. She got slapped with a $300 fine for violating the judgement. Now she's making the argument that she cannot make "timely decision" because I....

1. am uncooperative and I don't get back to her in a timely fashion
2. moved to Oregon without consulting the court (Ooops. I thought I was told otherwise.)
3. lack an "active" role in raising our daughter
4. am in violation of the parenting time agreement we had prior to my leaving MI
and there's some more, but that's a good list for now.

Basically, I want to know what's next in the process and what you all might suggest as a strategy I might employ to defend myself and retain my legal custody rights. Thank you for any comments. By the way, I've read this document pretty thoroughly, for what it's worth: Michigan.gov custody PDF

1. Do you?

2. Were you required to notify the court?

3. Given that you're several states away, she may have a point.

4. Are/were you?


(You may wish to add the additional information you've included here, to the post you made elsewhere)

1. The mother complains that I do not cooperate with her nor do I communicate with her in a timely manner.
She sends me an email and I reply as soon as I can. I'm usually online, but I don't check me email every five minutes. It might be a 1-2 days at the most when I get a message back to her. If the matter is urgent, then I tend to monitor the account. The latest account was that she was a the doctor's office and called me 15 times to see if I would agree to have our daughter get the Guardasil shot. I think such a decision needs to be informed so I needed time to research options. I returned her message in less 8 hours.

2. Apparently I did violate the court order on moving outside 100 miles. I can't argue that. I was mistakenly under the impression that that rule only applied to the custodial parent. My mistake. Is it still worth asking permission from the court? It's been over 2 years.

3. Certainly I don't physically show up like I did when I lived there. I do maintain a phone routine, send her packages regularly, contact her teaches regularly, and hold conversations about what is going on in her life. I have traveled back to Michigan twice (2009, 2010) for one week stints, since that's all the vacation time I could spare. During this time, my daugher was engaged and seemed happy to spend time with me/us.

4. According to the October 13, 2009 exparte order re: parenting time, the document states, "The Plaintiff shall see [child's name] in the state of Michigan only. The Plaintiff shall contact the Defendant to make arrangements for parenting time at least one week prior to his retun to Michigan. If the parties are unable to come to an agreement the Plaintiff may file a motion for a specific parenting time schedule." I have followed this to the letter, and gone above and beyond by making requests months in advance. At no time did the mother challenge my ability to see my daughter.

The last custody order is an ex parte order from 2009? I'm skeptical. An ex parte order would normally be filed during the pendency of an action for divorce or custody, and would normally expire upon entry of the final order.

If you know your ex- is communicating with you about important matters by email, but only check your email every few days, you should be discussing with your ex- how she might better reach you. Phone doesn't work, either?

Your ex supposedly phoned you fifteen times from the doctor's office? This is over the space of how much time? Ten minutes? Six hours?

If you're not available to participate in basic decisions pertaining to your child's care, your ex- has a point.

Guess I will have to do some more digging for the "official" record. Email is about the only way we can communicate. Phone calls turn into lectures and pissing matches. Email leaves a trail and we are more savvy about our choice of words. The 15 phones calls were made over a period of about 10 minutes. I failed to mention that my current wife and I share the phone so I didn't get any of the messages until later that evening. My wife determined from the message left that there was no need to contact me at work concerning the matter. I replied as soon as I got the message, however.

My point is, I do get back to her and I did support her decision. During all this wrangling with the ortho and the doctor's office call, I never denied our child the service she needed. I don't feel like I have to jump with the ex wants me to. Sometimes a thoughtful decision needs to be made...together. Not one party demanding the other to do what they want them to in the next ten minutes. Life doesn't work that way.

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Quoting torrotorro

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1. The mother complains that I do not cooperate with her nor do I communicate with her in a timely manner.
She sends me an email and I reply as soon as I can. I'm usually online, but I don't check me email every five minutes. It might be a 1-2 days at the most when I get a message back to her. If the matter is urgent, then I tend to monitor the account. The latest account was that she was a the doctor's office and called me 15 times to see if I would agree to have our daughter get the Guardasil shot. I think such a decision needs to be informed so I needed time to research options. I returned her message in less 8 hours.

2. Apparently I did violate the court order on moving outside 100 miles. I can't argue that. I was mistakenly under the impression that that rule only applied to the custodial parent. My mistake. Is it still worth asking permission from the court? It's been over 2 years.

3. Certainly I don't physically show up like I did when I lived there. I do maintain a phone routine, send her packages regularly, contact her teaches regularly, and hold conversations about what is going on in her life. I have traveled back to Michigan twice (2009, 2010) for one week stints, since that's all the vacation time I could spare. During this time, my daugher was engaged and seemed happy to spend time with me/us.

4. According to the October 13, 2009 exparte order re: parenting time, the document states, "The Plaintiff shall see [child's name] in the state of Michigan only. The Plaintiff shall contact the Defendant to make arrangements for parenting time at least one week prior to his retun to Michigan. If the parties are unable to come to an agreement the Plaintiff may file a motion for a specific parenting time schedule." I have followed this to the letter, and gone above and beyond by making requests months in advance. At no time did the mother challenge my ability to see my daughter.

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The move away law applies to both the CP and NCP, why would you think it would only apply to the CP? It's not ok for the CP to move over 100 miles, disrupt the child's life, the relationship with the other parent, but it's ok if the NCP does the same to the child? Not gonna wash in court.

Why the exparte order? Funny it was 2 years ago, perhaps shortly after you moved? Strange it has you seeing the child only in the state of Michigan. How old is the child? In 2 years you have seen your child twice for a total of 2 weeks? I think that exparte order was done shortly after you disregared the order and moved across the country without the courts permission. Obviously since you moved, the current parenting time order would not have worked, so what, mom file an emergency hearing on the parenting time order?

If you want ones to help you and give you correct answers then you need to give the whole story here. Why can't you have parenting time with the child in your state? What exactly did mom have to pay a $300 fine for?

The link you posted is to a Michigan custody GUIDELINE. You do understand that is just a guideline. Each county also has a guideline, many are online, but again they are just GUIDELINES. You will do much better looking up the county your case is in and reading that guideline, it can differ from the Michigan one. But again it is just a guideline, only thing that counts is your current order, who is following it and who is violating it. Can't really give you much more then that, since you have left way to much out here.

There is absolutely nothing preventing the NCP from moving away. Move-away laws DO tend to apply ONLY to the custodial parent. The NCP generally has no such limitations outside of notifying the CP - they certainly don't have to gain permission from the court or the CP.

(Unless this is a really very weird and unusual local process)

Thanks for your thoughts. I guess I am leaving things out since it would take up too much space. So I will address your questions.

At a meeting with a Friend of the Court representative, I was told that I could move. On 9/23/09 I submitted a permission request to FOC and on 9/25/09, I moved. This seems to be erroneous since I see in the judgment the stipulation. Yes, I blew that one. Let's move on.

Why the exparte order? I got out to Oregon and lost all my parenting time according to the previous judgment. Yes, I did that to myself. In October 2009, my ex-wife and I, though FOC facilitation came to the agreement I stated above. The child at the time was 9 years old. She's 11 now. It has cost my wife and me over $1500 each time to fly back to MI. It's worth the money to see my daughter, don't get me wrong. But I can't afford to make more than 1 trip a year.

Why can't I have time with my child in my state? Mom won't allow it. My parents have even suggested they would fly out with her. No answer. The order says Michigan only. That's all I can tell you.

Regarding the $300. She was fined for violating the joint legal custody section of the judgment when she initiated an orthodontic procedure without consulting me. There are two more of these disputes coming: $438, and $562. I'm objecting to both on the grounds that she started a process that I never agreed to and now I can't do anything about it without jeopardizing the well being of my child.

Thank you for pointing out the guidelines. I realize that the courts will interpret them however they see fit.

According to paperwork I just located, I submitted a request for permission to move on 9/23/09. I never heard back from them when I left on 9/25/09. To this date, I haven't heard anything from them. I'm making a point to have my case worker review the file to see if there's anything in there. The order seems clear, now that I read it again (grrrrr.....), on neither parent moving more than 100 miles without the court's permission. Wish it was as simple as you say.

Then I will sincerely apologize wrt my previous post; in most states the relocation restriction generally refers only to the CP but if that's what's normal in MI and/or written into your order I sit corrected.

However given what you've stated here, it does seem as if Mom has at least a reasonable case. Your recourse with regards to #4 would be to file in court and get the order changed. Other than that? The odds are against you.

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Quoting Dogmatique

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There is absolutely nothing preventing the NCP from moving away. Move-away laws DO tend to apply ONLY to the custodial parent. The NCP generally has no such limitations outside of notifying the CP - they certainly don't have to gain permission from the court or the CP.

(Unless this is a really very weird and unusual local process)

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No it's a very weird and unusual state process.

The child has 2 legal residences, one with the CP and one with the NCP, so both parents must seek permission for a move over 100 miles. Now grant you it is much easier for the NCP to get the courts permission then a CP, but they still need the courts or the other parents permission. This provision is required on all orders now, or some other agreement covering it either between the parents or something the court ordered. There are exceptions to it listed under it, perhaps one applied to the OP.

http://www.legislature.mi.gov/(S(uwi...ame=mcl-722-31

CHILD CUSTODY ACT OF 1970 (EXCERPT)
Act 91 of 1970

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.

(3) This section does not apply if, at the time of the commencement of the action in which the custody order is issued, the child's 2 residences were more than 100 miles apart. This section does not apply if the legal residence change results in the child's 2 legal residences being closer to each other than before the change.

(4) 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.

(5) Each order determining or modifying custody or parenting time of a child shall include a provision stating the parent's agreement as to how a change in either of the child's legal residences will be handled. If such a provision is included in the order and a child's legal residence change is done in compliance with that provision, this section does not apply. If the parents do not agree on such a provision, the court shall include in the order the following provision: “A parent whose custody or parenting time of a child is governed by this order shall not change the legal residence of the child except in compliance with section 11 of the “Child Custody Act of 1970”, 1970 PA 91, MCL 722.31.”.

(6) If this section applies to a change of a child's legal residence and the parent seeking to change that legal residence needs to seek a safe location from the threat of domestic violence, the parent may move to such a location with the child until the court makes a determination under this section.

Sorry Dogmatique I posted this before I saw your other post regarding this. However I am leaving it, for you and others to read.

That's an awesome explanation - thank you!

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Quoting torrotorro

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Thanks for your thoughts. I guess I am leaving things out since it would take up too much space. So I will address your questions.

At a meeting with a Friend of the Court representative, I was told that I could move. On 9/23/09 I submitted a permission request to FOC and on 9/25/09, I moved. This seems to be erroneous since I see in the judgment the stipulation. Yes, I blew that one. Let's move on.

Why the exparte order? I got out to Oregon and lost all my parenting time according to the previous judgment. Yes, I did that to myself. In October 2009, my ex-wife and I, though FOC facilitation came to the agreement I stated above. The child at the time was 9 years old. She's 11 now. It has cost my wife and me over $1500 each time to fly back to MI. It's worth the money to see my daughter, don't get me wrong. But I can't afford to make more than 1 trip a year.

Why can't I have time with my child in my state? Mom won't allow it. My parents have even suggested they would fly out with her. No answer. The order says Michigan only. That's all I can tell you.

Regarding the $300. She was fined for violating the joint legal custody section of the judgment when she initiated an orthodontic procedure without consulting me. There are two more of these disputes coming: $438, and $562. I'm objecting to both on the grounds that she started a process that I never agreed to and now I can't do anything about it without jeopardizing the well being of my child.

Thank you for pointing out the guidelines. I realize that the courts will interpret them however they see fit.

According to paperwork I just located, I submitted a request for permission to move on 9/23/09. I never heard back from them when I left on 9/25/09. To this date, I haven't heard anything from them. I'm making a point to have my case worker review the file to see if there's anything in there. The order seems clear, now that I read it again (grrrrr.....), on neither parent moving more than 100 miles without the court's permission. Wish it was as simple as you say.

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Don't care what mom will allow, it is what you may be able to get with the court. With the child being 11, there is no reason not to petition the court to get a standard long distance plan, where you can have the child fly out to you. Mom probably is gonna fight it, but not seeing why she would win on this. It still is going to cost you, you moved, moving party usually pays for all transportation. You need to check airline rules, ones that fly between Mi and Oregon, and see what their rules are on an unaccompanied minor. She may be old enough to go it alone, or you pay extra for an airline employee to get her on and off the plane. Be cheaper to fly her to you, even if you pay extra for the unaccompanied minor, then to fly 2 people back and forth.

What you got then was through FOC, you agreed, FOC does not make orders, only recommendations. Since you agreed then a Judge will sign it into an order. You can object to a FOC recommendation. We also have Refs in Mi, they only make recommendations to, you can object to that. You can file 2 ways, through FOC although they will only hear something that is already in the order, in this case parenting time. Or you can file directly with the circuit court and pay a filing fee. If you go through FOC you first go to FOC, you can object, depending on the court sometimes you will then see a Ref, other courts it will go directly to the Judge. If you file directly through the circuit court, you will go to a Ref first, again they only make recommendations, you can object and then it will be heard by the Judge. Every county is a bit different, so objection time is different. Don't agree to something you don't want, not when you have other options such as the Judge hearing the case. I have seen many Judges in several Mi counties, disagree with recommendations from Refs and FOC. All this info will be in the handbook for your county FOC.

On the orthodontic, since she was already fined, and she went ahead again with it, it is possible, for her to end up paying all the costs. That is what your going to have to try and get the court to go with. Since the process has already started, the court won't stop it, but she didn't follow the court order, so she can be held responsible to cover all the costs. But the court could also still have you pay your share.

It's not as simple as I must have made it out to you, sorry about that, it is actually very difficult. You need to educate yourself. You moved 2 years ago, and even though you didn't get the courts permission, mom knew, she filed. So for 2 years you have been gone, and you both agreed to another parenting plan to go with your move. So mom can't sit and argue how you moved without permission, cause she should have put that fuss up 2 years ago. But instead she agreed to another parenting plan that accomadated the move. However as I said, I would be filing for a change in that plan, cause you should be able to take the child to your state, she is old enough, you have been punished for moving without permission for 2 years now. So consider changing that. You can find long distance plans online, again look up your county FOC handbook, and see if they have one in it. If not look up other Mi counties(Mine has a long distance plan, and it is online, along with other counties).

Standand long distance plan in my county-Every other long holiday break. Christmas/New Year, Midwinter break(some counties have schools that have a week off, but others only have a 4 day weekend), Spring break/Easter(Some years they fall separate and other years they are together, think this might also depend on the school district), summer(minimum I have seen is 6 weeks, which all goes to the NCP, but I have seen some counties with 8 weeks and others with all but the week after school lets out and the week before it starts), and Thanksgiving. Now you would get every other, except summer you will get a block every summer.

The only problem I see with you actually getting the complete long distance plan to start with, is you have only seen her for a week each of the last 2 years. But even with that you could build up to the standard. Seriously you made a huge error agreeing to the other plan 2 years ago, even with your mistake of not notifying the courts, you should have gotten the standard plan. Only time they don't do the standard is with younger children(under 5) or when a long period of no contact has occured. Then they will go with starting off visits in the state of the child.

But how much of that standard long distance you go for is up to you, maybe your happy with just your week and coming to Mi for the visits. If your not happy, then you have nothing to lose but your time filing and going to court. With the distance it is possible to get phone ins to court hearings, but you have to ask the court for that when filing. It's possible that with your lack of contact since the move, mom could now get joint legal from you, however they hate taking joint legal away. So start reading and learning, and preparing, hire a lawyer if you can.

Gam: Yes, that's an awesome explanation. Thanks very much. I understand that this has everything to do with what is in the best interest of the child. But, I'm wondering what provisions there are for the NCP moving to take a job that is outside the 100 mile limit. At this point, is it even worth going through the paperwork to make my new residence official? Or is that just a waste of everyone's time?

Gam: thank you sooo much for your valuable insights. This is gold to me! Understanding all this legal mumbo-jumbo gives me a headache. Thank you for educating me. Yeah, I know I blew it on the whole permission thing. I should have been more diligent. Your statment about the standard plan is very helpful. I felt railroaded by the FOC when we talked about parenting time after I landed out here. Seems I need to make sure I exercise my power to object. Thanks for point out the handbook. I plan on buying on soon.

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Quoting torrotorro

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Gam: Yes, that's an awesome explanation. Thanks very much. I understand that this has everything to do with what is in the best interest of the child. But, I'm wondering what provisions there are for the NCP moving to take a job that is outside the 100 mile limit. At this point, is it even worth going through the paperwork to make my new residence official? Or is that just a waste of everyone's time?

Gam: thank you sooo much for your valuable insights. This is gold to me! Understanding all this legal mumbo-jumbo gives me a headache. Thank you for educating me. Yeah, I know I blew it on the whole permission thing. I should have been more diligent. Your statment about the standard plan is very helpful. I felt railroaded by the FOC when we talked about parenting time after I landed out here. Seems I need to make sure I exercise my power to object. Thanks for point out the handbook. I plan on buying on soon.

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Just notify FOC of your current address, most likely a waste now to file on the move. Your ex knows, FOC knows, you all made a new parenting plan 2 years ago because of your move.

What you need to concentrate now on, is getting a modification of that crappy current long distance parenting plan. You also need to work on whatever she has filed concerning taking your legal custody away. You are really gonna need a new long distance plan, that spells out everything. Specially on communicating with the child, with mom, how communication is to take place. Phone calls can be right in the order, several a week is good for long distance, have specific days and times you can call. If you have a webcam or can afford to get one and get one for the child, that is also an excellent way to communicate long distance. That to can be written into the order. I would also have something in the order about communicating between you and mom, and a time frame to return calls. What form that communication is done in, how long to get back to each other. But you will need to keep a good check on your email account, no excuses, check it often, along with phone messages and get back as soon as possible.

Joint legal is all major decisions. It basically means a decision needs to be discussed between the 2 of you and a joint decision made. Calling after the fact and calling from the Dr office for that decision is not reasonable on mom's part. You need something like mom calls and discusses having some shot, you then have 24 hours to get back with her on your thoughts to come to a joint decision. The things medically mom is doing here are not emergency decisions, they don't need to be decided while she is sitting with the child in the Dr or Ortho's office. She needs to get a grip, be an adult and discuss these things with you. Yes it puts her out to have to go back for a shot to the Dr office, but guess what, she is CP, that is her job, she accepted it.

The handbooks are not for sale, they are free to anyone who has a case. I would send a letter to your FOC requesting one be mailed. Before that though, look up the county FOC online your case is in. Could be that the handbook is online, many counties have them online. Just make sure it's the county your case is in, they all are a bit different, so only the county your case is in will truly help you.

Gam: Thanks again. Your insights are gold. I'll look into the handbook thing. Thanks for helping me focus on the long distance agreement. That was never an option that FOC presented. It was all or none according to them. I like your thoughts on the communication plan. Even though we hate talking to each other, we both need to own up to the fact that it has to be written down and we both follow it. Good call. Question: what if I asked mom to allow me to communicate with our daughter via Skype, but she flat out denied me? Do I have a case that she's prohibiting me from communication? She stated, "She has a cell phone." And so, I dropped it.