Changing or Modifying your Custody Agreement in Michigan
Life is not stagnant and sometimes situations occur which make your prior custody order no longer the best one. Change happens. So what do you do now, knowing that the arrangement that you agreed on after your divorce isn’t going to work for you anymore?
It is acceptable for someone to request a change under certain circumstances. However, there are several things you need to know when you are considering modifying custody in Oakland County. For example, after a motion has been filed to modify an existing custody order, there are procedures a Michigan court considers when deciding whether or not to change an existing custody order. Our judges in Oakland County adhere to these legal requirements pretty strictly:
These procedures are:
- whether there is a material change in circumstances or other good cause since the last custody order was put in place;,
- what is the burden of proof on the petitioning party, and
- is the modification in the best interests of the child.
It is important to remember that although child custody orders are not written in stone, they are difficult to change and require the skill of an experienced legal team. We can help. Contact us online or call (248) 479-6200.
What counts as Change of Circumstance?
One of the two ways a party can demonstrate that the court has the authority to grant a modification to a custody order is to show “proper cause”. The petitioner, that is the party requesting the modification, must show proper cause or a “material change of circumstances” in order to justify requesting the change.
A proper cause is something that has, or could have, a significant effect on the child’s life, to the extent that a change of the child’s custodial situation should be undertaken. In determining this, the court may use and rely on the 12 factors of the best interests of a child. There are specifically set out at MCL 722.23 and also lower down in this article.
Normal life changes, even when they are bad, are not enough for a court to consider modifying a child custody order. Before a court can even consider a custody modification, the party who has asked for the change must show that the circumstances that have changed are significant enough, that it would or could materially change the child’s well being.
For example, courts have found that changes to the custodial parent’s financial situation and a child struggling in school were not significant enough to justify modifying a child custody order. On the other hand, major changes such as a parent relocating due to a new marriage or job opportunity, or major disagreements over the child’s medical care have been enough for courts to consider modifying a child custody order.
What are the Best Interests of the Child?
Even if there is proper cause, or the change of circumstance is significant enough that it could materially change your child’s well being, the court still may not modify the child custody order. When considering child custody and parenting time, the court must consider 12 factors that are listed in the Child Custody Act of 1970.
These factors are:
- The love, affection and other emotional ties existing between the parties involved and the child.
- The capacity and disposition of the parties involved to give the child love, affection and guidance, and to continue the education and raising of the child in his or her religion or creed, if any.
- The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care and other material needs.
- The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
- The permanence of the family unit of the existing or proposed custodial home or homes.
- The moral fitness of the parties involved.
- The mental and physical health of the parties involved.
- The home, school, and community record of the child.
- The reasonable preference of the child if the court considers the child to be of sufficient age to express a preference.
- The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent/child relationship between the child and the other parent or the child and the parents.
- Domestic violence – regardless of whether the violence was directed against or witnessed by the child.
- Any other factor considered by the court to be relevant to a particular child custody dispute.
The law does not require that the court weigh each factor equally. In fact, in Oakland County, Macomb County, Livingston County, Wayne County, and Washtenaw County, we usually see cases where the judge does not give equal significance to each of these factors.
The process becomes even more complicated because the amount of proof (burden of proof) that has to be shown can be different from case to case. At the end of the day, child custody and changes of custody are complex legal proceedings.
What is the Burden of Proof required to Change Custody?
After it has been shown that there is proper cause, or a material change of circumstances warranting a modification of a custody order, the second step is for the court to decide what the proper burden of proof the petitioning party must show to modify the order of the court.
The determining factor for what the burden of proof will be, is whether there is an established custodial environment present for the child. This is a critical step. If there is a custodial environment, a moving party must show by clear and convincing evidence that a modification of the child custody order is in the best interests of the child.
If there is not an established custodial environment, the petitioning party only needs to show by a preponderance of the evidence that a change is in the best interests of the child. It is significantly easier to modify a custody order if there is no pre-existing custodial environment though we seldom see that. The reason behind this is to minimize the negative effects of changing a child’s custodial arrangement, particularly when it is unwarranted and when it will be disruptive to the child.
To determine if an established custodial environment exists, the court will look at whether or not there is already a custody order in place, and if the child has been with the current custodian for a significant period of time where they have received comfort, parental care, discipline, love, security, discipline, comfort, guidance, a sense that the housing situation is permanent, and the necessities of life.
A prior custody order is merely a factor in determining if there is an established custodial environment and does not prove one actually exists. There can be a prior custody order in place, and still no established custodial environment.
Why are the courts so reluctant to modify custody agreements?
Although Michigan child custody orders can be changed, the Child Custody Act of 1970, which controls custody law to a large extent, has a goal of avoiding “unwarranted and disruptive changes to custody” whenever possible. Before modifying a child custody order, the court first looks to see that there is proper cause or a material change of circumstance that impacts the child’s life.
If the child custody order is revisited, the court may only modify the order when it is in the child’s best interests. Family Court judges in Oakland County are especially resistant to changing custody unless the strict requirements are met with proper evidence and proof.
Custody Modification Attorneys
If you are involved in a child custody case, or are looking to establish or modify a child custody order, you need an aggressive family law attorney. In these situations, it is recommended that you choose a firm with extensive experience in custody cases. A firm that has assembled a team of lawyers with expertise in family law, and a reputation for success handling family law cases in Michigan.
Our trusted team of skilled professionals has a proven track record of successful results in Michigan’s Family Courts. Our Oakland County office is located in Farmington Hills, and we have office hours by appointment. You can reach us 24/7.