The Michigan Court of Appeals recently decided a case involving dental hygiene to change custody, affirming the trial court’s decision that there was neither proper cause or a change of circumstances sufficient to warrant a change of custody.
In the case of Kelly v. Johnson, Michigan Court of Appeals Case No. 334144, the father was awarded physical custody of the minor child when the mother returned to school. The parties were awarded joint legal custody, which awards a parent with decision making authority and access to educational, medical, religious and other legal decisions regarding a child.
Is brushing and flossing a change of circumstances?
When the mother visited the child in October 2016, the child told her he had a toothache and the mother told the father to take the child to the dentist. After realizing the father did not take the child to the dentist, the mother filed a motion to change custody.
When petitioning a court to change custody, the first step is to provide evidence that there is either proper cause or a change of circumstances sufficient to warrant a review of custody. Proper cause or a change of circumstances are a threshold requirement, a first step. Simply put, a court will not reexamine a custody award until after it makes a determination of proper cause or a change of circumstances.
On appeal the mother argued the father’s failure to provide the child with proper dental care was a sufficient change of circumstances to warrant a review of child custody.
Proper cause or a change of circumstances law.
The cases involving proper cause or a change of circumstances provide:
“[T]o establish a “change of circumstances,” a movant must prove that, since the entry of 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.” Citing: Vodvarka v. Grasmeyer
The Michigan Court of Appeals decided that the changes to the child’s dental health did not represent a “change” as contemplated under Vodvarka, but instead involved an ongoing process of deterioration over time, and that the mother was partly blameworthy for not addressing the matter earlier. The court also held that plaintiff had not demonstrated that the dental issues had the significant impact on the child as contemplated by Vodvarka.
Brush and floss or prepare for loss? In the case of Kelly v. Johnson, the answer is no. Brushing and flossing are the responsibility of both parents when awarded joint legal custody.
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By: Daniel Findling
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