Life is not stagnant and situations occur which make the prior custody order no longer the best one. After an order has been issued establishing custody the parties may wish to modify the order. It is proper for a party 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. After a motion has been filed to modify an existing custody order you must be aware that there are essentially three factors a Michigan court considers when deciding whether to change an existing custody order. These factors are: (1) whether the time is appropriate to modify a custody order, (2) what is the burden of proof on the petitioning party, and (3) is the modification in the best interests of the child. We can help you assess these factors in your case. Contact us online or call (248) 479-6200.
When Can You Modify a Custody Order or Judgment?
The first step for a trial court when deciding whether to grant a change of custody is to determine whether the proper circumstances have been presented to allow the court to change a custody order. Under the Michigan Child Custody Act, a trial court can modify a child custody order when it is “for proper cause shown or because of a change of circumstances.” A party is not required to show both, merely one of the two. The party requesting the change has the burden to show “proper cause” or a “change of circumstances” by a preponderance of the evidence. If a parent wishes to change the existing custody order and arrangement there must be a reason for the change being necessary. The court cannot change the order based solely on a party’s dissatisfaction with the current arrangement. The party requesting the modification must show to the court that there is either “proper cause” or a “change of circumstances” before the Court will enter an order modifying custody.
It is worth noting that a temporary stipulation for a custody arrangement by the parties under MCL 722.27(1)(c) is not a previous order of the court. In this event, there is no previous order. This occurs when the sole basis of the present order was the party’s agreement and stipulation, without an evidentiary hearing settling custody.
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 “change of circumstances” to proceed. A proper cause is a ground 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.
These factors as defined in MCL 722.23 Sec. 3 are: (a) The love, affection, and other emotional ties existing between the parties involved and the child; (b) 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; (c) 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; (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity; (e) The permanence, as a family unit, of the existing or proposed custodial home or homes; (f) The moral fitness of the parties involved; (g) The mental and physical health of the parties involved; (h) The home, school, and community record of the child; (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference; (j) 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; (k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child; and (l) Any other factor considered by the court to be relevant to a particular child custody dispute.
Change of Circumstances and Custody Modification
The second way a petitioning party can show to a court that it should use its authority and modify an existing custody order or judgment is to demonstrate that there has been a “change of circumstances” warranting a modification. To show this the petitioner must demonstrate that, “since the last custody order, the conditions surrounding custody of the child which have or could have a significant effect on the child’s well-being, have materially changed”. Vodvarka v Grasmeyer, 259 Mich App 499, 675 NW2d 847 (2003). It is important to note that this must be a significant change. Mere normal life changes will not suffice to warrant a change in a child custody order. This is evaluated in relation to the best interest factors listed above and the effect on the child. It is important to know that this change must have occurred after the previous order was entered. A change that occurred prior to the previous order establishing custody will not suffice as a change of circumstances for the purposes of modifying custody.
Two situations of note that may result in a change of circumstances is a move by the custodial parent and financial issues of the parents. Under certain situations, a move by the custodial parent may constitute a change of circumstances. A move in and of itself does not constitute a change of circumstances. However, a move and change of residence in excess of 100 miles is a change of circumstances, per MCL 722.31. A move of less than this distance may constitute a change of circumstances depending on the particular situation. A change in the financial circumstances of a parent may constitute a change of circumstances, but this will not constitute a sufficient change of circumstances when it comes to modifying custody if it can remedied by modifying child support obligations.
What is the Burden of Proof Required to Change Custody?
After it has been shown that there is proper cause or a 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 as to what the burden of proof the petitioning party will be held to is whether there is an established custodial environment present for the child. This is a critical step. If there is a custodial environment, a 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 the 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. The policy 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 if there is already a custody order and whether the child has been with the current custodian for a significant period of time where the child has 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.
Is a Modification in the Best Interests of the Child?
The last step is to determine, based on the burden of proof discussed above, whether the modification would be in the best interests of the child. The court uses the 12 factors listed and discussed above. This is the same standard applied in any initial or prior custody order. The court is required to make a finding based on all 12 factors and apply the ones that are relevant.
It is important to remember that while a motion to modify an existing custody order is pending before the court, the existing order is still in effect. You must still follow the existing order and failure to do so can have negative consequences.
Convincing a court that your existing child custody order needs to be modified can be difficult and complicated. If you need assistance with modifying custody or have any questions, you should call our office. We can help you.