Custody Modification- Failing to establish proper cause or a change of circumstances

The threshold requirement for custody modification was recently addressed by the Court of appeals in the case of Reyes v. Herron.  The threshold requirement is proper cause or a change of circumstances.


In Reyes v. Herron, Mr. Herron took an appeal from the trial court’s order denying his motion to change custody, parenting time and support with regard to the parties’ minor child. The trial court ruled that Mr. Herron failed to establish proper cause or a change of circumstances sufficient to revisit the existing custody order and the court of appeals agreed with the trial court.

Mr. Herron filed his motion to change custody after his child got in an altercation with another child (allegedly threating him with a knife) while in the care of his mother.  Another basis for the motion was the minor child’s recent allergic reaction to Borax (an ingredient in making slime) during mother’s parenting time.

The Child Custody Act of 1970, MCL 722.21 et seq., states that before a court may modify a previous judgment or order concerning child custody, the movant must first show proper cause or change of circumstances.

Michigan Compiled Laws section MCL 722.27(1)(c) of the Child Custody Act provides that a court cannot hold a child custody hearing until the party requesting the modification of custody demonstrates proper cause or change of circumstances.  The law further requires that the burden of proof is on the requesting party

The seminal case on this issue is Vodvarka vs. Grasmeyer.

The Vodarka court defined “Proper cause” as: “one or more appropriate grounds that have or could have a significant effect on the child’s life to the extent that a reevaluation of the child’s custodial situation should be undertaken.” (See Vodvarka at pg. 511.) It “should be relevant to at least one of the twelve statutory best interest factors, and must be of such magnitude to have a significant effect on the child’s well-being.” (See Vodvarka at pg. 512.)

The Vodarka court defined “Change of circumstances” as requiring proof 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.” (See Vodvarka at pg. 513.) It must be “something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child.” (See Vodvarka at pg. 513-514.)

When examining proper cause and change of circumstances, the trial court should examine the statutory best-interest factors in Michigan Compiled Laws, section 722.23(a)-(i).

In the case of Reyes v. Herron, Mr. Herron failed to meet the threshold requirement of Proper cause or a change of circumstances.

The key learning from this case is that preparation matters. Had Mr. Herron done a better job demonstrating to the trial court that proper cause or change of circumstances, he may have found success in his quest to modify custody.

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I have been exclusively practicing divorce and family law in Michigan for over two decades.  The attorneys at Findling Law all share the core value of practicing law to help people navigate change in their lives, without compromising principles.  We are compassionate, creative and always prepared. We specialize in high socio-economic, high-profile and high-conflict cases, while also working with clients of all backgrounds. We recognize that the most important aspect of the practice of law is the application of the law to your specific circumstances.That is why we provide more free information on divorce and family law than any other Michigan law firm. We want to help you manage your situation. Allow our exceptional legal team to help you navigate the change in your life, without compromising principles.

By:  Daniel Findling


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