Child custody steps

On July 21, 2022, the Michigan Court of Appeals decided the case of Petsch v. Auer which involved a custody action after the mother moved to her mother’s house in Arizona without telling her husband. The trial court granted father custody (unless/until the mother moved back to Michigan) and the mother appealed the decision. The Court of Appeals agreed with the trial court decision, notwithstanding errors made by the trial court in its opinion. In this case, the Court of Appeals discusses the correct child custody steps.  


We previously discussed how to change custody in three easy steps, however, to recap the three steps are as follows:

The first step is a threshold question which asks, what has changed since the entry of the last court order. In Petsch v. Auer, the mother’s decision to move to Arizonia was a significant change of circumstances. In every case involving a change of custody, the trial court must make a threshold inquiry under Vodvarka vs. Grassmeyer which asks is their proper cause or change of circumstances of such a magnitude as to warrant a modification of the exisiting child custody Order. According to Vodvarka, the threshold requirements “. . .are intended to erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders.” Under Michigan law, without establishing either proper cause or a change of circumstance, you cannot modify an award of child custody.

The second step is determining if an Established Custodial Environment exists as defined in MCL 722.27(1)(c) exists. The custodial environment is established with a parent if over an appreciable period of time the child looks to that parent for guidance, discipline and the necessities of life and parental comfort. If there is an established custodial environment with one parent, a court will not alter it absent a showing a clear and convincing evidence, otherwise a court can change custody upon a showing of a preponderance of the evidence. In Petsch v. Auer, the trial court errored in not making a finding of an established custodial environment.

The third step is to examine the 12 statutory best interest factors set forth in MCL 722.23 applying the correct burden of proof (clear and convincing evidence vs. preponderance of the evidence) in examining the using the correct burden of proof to determine with whom custody should be awarded.

In Petsch v. Auer, the trial court’s failure to determine the existence of an established custodial environment could have been fatal however the issue was not preserved for appeal as the mother failed to object to the trial court’s failure to do so and because the Court of Appeals determined that custody could be changed regardless of the burden of proof.

The key learnings from the Petsch v. Auer case include the importance of raising all of the issues before the trial court and preserve the issues on appeal and to follow all of the child custody steps when requesting a change of custody. Let it be our privilege to help you or the person you may be worried about.

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