When a trial court is faced with a request to change child custody, it must first make a determination if there is proper cause or a change of circumstances since the last child custody order. If a court determines that there is proper cause or a change of circumstances then the trial court must conduct a best interest of the child hearing. The seminal case on proper cause or a change of circumstances is Vodvarka v. Grassmeyer, 259 Mich. App. 499 (2003).
In summary, to establish ‘proper cause’ necessary to revisit a custody order, a movant must prove by a preponderance of the evidence the existence of an appropriate ground for legal action to be taken by the trial court. The appropriate ground(s) should be relevant to at least one of the twelve statutory best interest factors, and must be of such a magnitude to have a significant effect on the child’s well-being. Quoting Vodvarka v. Grassmeyer
On July 25, 2017, the Michigan Court of Appeals in the case of Kimball v. Pearson, Jr., Docket No. 335639, decided that the trial court erred in not conducting a child custody hearing on the father’s motion to change custody. The trial court initially denied the father’s motion because it determined that the father did not meet the threshold requirement of proper cause or change of circumstances.
When the father submitted additional evidence to support the threshold requirement, the trial court denied his right to a child custody hearing once again. This time, the Michigan Court of Appeals reversed, indicating that the father did meet the threshold requirement of proper cause or change of circumstances and a child custody hearing was required.
A key learning from this case is that sometimes the trial court gets it wrong. When they do, you have a right to a timely appeal where three judges will decide the issue.
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By: Daniel Findling
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