Lots of parents here in Oakland County ask our family law attorneys whether they can change their child custody order. Circumstances change, and especially in Michigan: parents get new jobs, move around our state or country, and they ask how to modify their children’s custody arrangement accordingly. The short answer is that contested changes of custody are intentionally made difficult, but not impossible.
Although parents change custody arrangements all the time, it is important to understand that the legal process is complex, lengthy and often costly. Michigan law assumes that normally, stability is good for kids and that change should be avoided.
For that reason, our judges in Oakland County, Macomb County, and Livingston County are always slow to change custody. Caution is the word. However, there are times when changing custody of the children is in their interest.
If you want to modify custody in Oakland County or anywhere else in Michigan, there are a couple things you need to know. Michigan courts analyze three major factors when deciding whether or not to change custody of your children. The three factors are: (1) whether or not it is an appropriate time to modify your custody order, (2) what level of proof the requesting party needs to provide, and (3) whether or not this custody change is in the best interest of the child.
Our expert attorneys at The Kronzek Firm have been doing child custody work for decades. If you have questions about changing your custody order, contact us online or call our Oakland County office today at (248) 479-6200.
How soon can I modify a custody order/ judgment?
Before we answer that question, let’s define the term “custody”. The appeals courts in Michigan have made it clear that “custody” refers to both physical custody and also to legal custody. If you want to change either or these, or both of them, the following rules apply.
There is no exact time frame or time limit for changing your child custody order. However, the Michigan law allows that you can change your child custody order only when it is “for proper cause shown or because of a change in circumstance.”
In other words, you are not allowed to change your child custody order just because it is inconvenient for you or just because you feel like it. Remember, our law presumes that stability is best for your kids.
You don’t have to prove both “proper cause” and “change in circumstance,” but at least one of the two must be present. The burden of proof falls on the person asking for the custody change. Our family law attorneys spend many hours of each child custody case putting together the evidence to meet the initial requisite threshold issue on proper cause or change in circumstance. If you can’t get past this first threshold, your case comes to a grinding stop. Nothing further can happen. A judge must determine this issue first, before doing anything further with your custody change request.
You should also note that a temporary agreement for a custody arrangement by the parties under MCL 722.27(1)(c) is not a previous order of the court. In this situation, there is no previous order. This occurs when the present order was based on the party’s agreement and stipulation, forgoing an evidentiary hearing to decide custody.
What is “Proper Cause” when it comes to custody modification?
There are two ways for a party to show that the court has the authority to modify a custody order. The first way is by showing proper cause. It is up to the parenting filing the custody motion, or the person requesting the modification, to provide evidence of proper cause.
Showing proper cause means showing that some particular situation involving a parent or the child has the potential to, or will significantly affect the child’s life. This situation must be significant enough to warrant a new custody order.
To determine if the “proper cause” truly warrants a change in the child’s custodial situation, the court may use the 12 factors of the best interests of the child.
These factors are defined in MCL 722.23 Sec. 3:
- 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, as a 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 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. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.
- 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.
When Change of Circumstances Warrant Custody Modification
The parent asking for the custody change can also attempt to persuade the court to change the current custody order by showing a material change of circumstances. Again, this change of circumstances must be significant enough to warrant the change in custody.
To prove the significance of the change of circumstances, the petitioner must show 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 change.” Vodvarka v Grasmeyer, 259 Mich App 499, 675 NW2d 847 (2003).
A couple of key items to note:
1) the best interest evaluation of the child, listed above, is still taken into consideration;
2) the change in circumstance must truly be significant, rather than just a normal life change;
3) the change in circumstance must occur after the last custody order was made.
Two common situations that sometimes warrant a change of circumstances are when one of the custodial parents moves a significant distance, or when one of the parents has a change in financial circumstances.
A move by itself does not automatically warrant a change in circumstances, but a move of greater than 100 miles is usually a change of circumstance, according to MCL 722.31.
Moving less than 100 miles away may or may not qualify as a change in circumstance. Similarly, a change in the financial situation of a parent may or may not qualify as a change in circumstance. This determination depends on whether or not the situation can be alleviated by a change in child support obligations.
How do you prove change of circumstance or proper cause?
The requesting party in a child custody modification case has the burden of proof. However, the law determines the amount of proof required of the parenting that asks the court to change custody. Here, the determining factor is whether or not the child already has an established custodial environment with one or both parents.
If a parent’s request to change custody would also change the established custodial environment for the children, then the requesting parent must prove that a new custody order would be in the best interest of the child. Because of this, it is much easier to change a custody order when there isn’t an established custodial environment already. Realistically, that almost never happens. Usually, there is indeed an established custodial with one or with both parents.
The goal of creating a custody order or changing a custody order should always be for the benefit of the child. The reason it is hard to change a custody order when the child already has an established custodial environment is so that the child doesn’t experience unnecessary disruptions.
The court will look at a few different factors to decide whether or not the child already has an established custodial environment. The first thing the court will look at is whether or not there is currently a custody order.
The second factor the court will look at is whether the child has been living with the current custodial parent for a significant amount of time. Finally, the court will try to determine whether the child looks to mother, to father or to both parents for comfort, care, love, discipline, security, guidance and affection.
It is important to note that having a prior custody order does not mean that the child has an established custodial environment. It is possible that a custody order is in place but the child still doesn’t have an established custodial environment with the custodial parent.
Your Oakland County Custody Attorneys
If you are considering modifying a custody order, it is important that you contact a family law attorney right away. Custody changes are a highly regulated, often changing, complex process. You should note that you must still follow the current custody order while you are trying to modify it. Failing to do so will result in negative consequences.
Our attorneys at The Kronzek Firm have decades of experience helping parents with custody orders. We’ve done this literally hundreds of time. We can help you. Let’s talk about your custody issues and decide together if we’re a good fit to work together. Call our Farmington Hills office today. We can schedule after hours and weekend appointments when necessary.