February 19, 2014

How to change custody in Michigan

How to change custody in Michigan

Life brings changes.  Circumstances involving children change.  For example, as a child get’s older his/her needs change.  Other examples include a change in school performance or behavior.  There is a general perception that court’s are reluctant to change custody because it can create a lack of stability in a child’s life and the perception is true.

 

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How to change custody in Michigan – The basics

A change of custody in Michigan is necessary under certain circumstances and Michigan custody law provides the basis to do so. However, change in a Michigan custody case does not always come easy.  In fact, Michigan custody modification law makes it difficult to change custody if the change is really big. By that I mean if the Michigan custody modification results in a change in the established custodial environment which is legally defined in Michigan compiled laws section 722.27 of the Child Custody Act of 1970.  Simply put, small changes in parenting time are a whole lot easier than a big change of custody under Michigan custody modification law.

Michigan custody modification law requires clear and convincing evidence to change custody, a big change. While a change in parenting time requires preponderance of the evidence (a whole lot easier)!  However, if the modification of parenting time raises to the level of a change in custody, the Michigan custody modification law applies.


 

 

 

 

How to change custody in Michigan – The Details

The details on Michigan custody.

This page presumes an understanding of Michigan child custody law.  You can learn more about Michigan child custody from our Michigan child custody page and video, part of our Michigan Divorce Education Series.

New evidence required – not old.

When petitioning a court to change custody your Michigan attorney can only argue new facts or changes that have taken place since the entry of the last custody order.  Court’s will not consider evidence already decided in a petition to change custody.  To be successful, you must argue new facts, not old.  The statutory authority for a court to modify a custody determination is found in Michigan Compiled Laws section 722.27(c).

Threshold requirement-“proper cause” or “change in circumstances

The threshold requirement to change custody under Michigan divorce and Michigan custody law is “proper cause or change in circumstances”  which is the legal term of art to describe the good basis to change custody.   A court will not consider a request to change custody unless it is first shown that there is proper cause or a change in circumstances sufficient to warrant a review of a prior child custody determination.

What does “proper cause” or “change in circumstances” mean when petitioning to change custody?

The definition is provided in the landmark case of  Vodvarka v Grassmeyer, 259 Mich. App. 499 (2003).

Proper cause or change of circumstances means since the entry of the last custody order, one or more appropriate grounds that have or could have a significant effect on the child’s well being that a reevaluation of the child’s custodial situation should be undertaken.

Once the initial burden of showing proper cause and change in circumstances is met, the case proceeds under the twelve statutory best interest factors analysis, typically with a hearing.

Michigan custody burden of proof

When a new custody case is before the court, your divorce or custody attorney will argue the twelve statutory best interest factors  under the Child Custody Act of 1970 and the court will utilize a “preponderance of the evidence” standard when deciding with which parent a child should spend time with.

Preponderance of the evidence can best be described as 50.1% that is if your divorce or custody attorney successfully convinces the court that the 12 best interest factors just slightly favor their client, that parent would win the custody case.

The circumstances surrounding modification can change the burden of proof.  In modification cases, there is typically an established custodial environment, which would make modifying an existing custody award more difficult.  Your divorce lawyer or custody lawyer would have to provide more proof to modify the existing custody award.  Divorce attorneys and custody attorneys argue a “clear and convincing evidence” standard.  Simply put, a court will not modify an existing custody order unless it is proven that the 12 best interest factors would clearly and convincingly favor the change of custody.

A child custody award can be modified.  Custody modification requires the party seeking to change child custody to first provide a good basis for the custody modification.  Divorce and custody lawyers call this a threshold requirement. Simply put, before child custody can be modified you or your custody attorney must first meet the threshold requirement.


 

 

 

 

The Law – cases and statutes on changing custody in Michigan

MCL section 722.21:  Custody in Michigan statute.

Modification of Custody in Michigan

Rossow v Aranda, Court must find that the petitioner has carried the initial burden of establishing that there is proper cause or a change in circumstances to modify an existing Michigan child custody order.

Meyer v Meyer, 153 Mich App 419 (1986), a change in a custody order is appropriate at the time the court determines that a modification is in the child’s best interest.

Proper cause and change in circumstances for changing custody in Michigan

Sinicropi v. Mazurek (2006) 729 N.W.2d 256, 273 Mich.App. 149, Mother’s move to another town almost 90 miles away was a sufficient change of circumstances.

Killingbeck v. Killingbeck (2005) 711 N.W.2d 759, 269 Mich.App. 132, Not just any change will suffice to establish a change in circumstances; the evidence must demonstrate something more than the normal life changes (both good or 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.

Thompson v. Thompson (2004) 683 N.W.2d 250, 261 Mich.App. 353Trial court was not required to determine proper cause or change in circumstances when it modified a temporary custody order. 

Vodvarka v. Grasmeyer (2003) 675 N.W.2d 847, 259 Mich.App. 499., To establish a “change of circumstances,” under Child Custody Act provision requiring party seeking change in custody to first establish proper cause or 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; the evidence must demonstrate 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. Vodvarka v. Grasmeyer (2003) 675 N.W.2d 847, 259 Mich.App. 499Child Custody  555

Killingbeck v. Killingbeck (2005) 711 N.W.2d 759, 269 Mich.App. 132  The trial court was not required to conduct a full evidentiary hearing for custody modification when the biological father did not allege any change in circumstances in the five-month period between the entry of the original order and the stipulated order.

Burden of proof:  To establish “proper cause” necessary to revisit a child 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 magnitude to have a significant effect on the child’s well-being, and, when a movant has demonstrated such proper cause, the trial court can then engage in a reevaluation of the statutory best interest factors. Vodvarka v. Grasmeyer (2003) 675 N.W.2d 847, 259 Mich.App. 499Child Custody  554

Mother’s move to another town:   Mother’s move to another town almost 90 miles away was a sufficient change of circumstances to warrant trial court to entertain motion for change of custody filed by legal father of child born out of wedlock; move had or could have had a significant effect on five-year-old child’s life. Sinicropi v. Mazurek (2006) 729 N.W.2d 256, 273 Mich.App. 149.

More than the normal life changes required:  Not just any change will suffice to establish a change in circumstances warranting modification of child custody; the evidence must demonstrate something more than the normal life changes (both good or 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. Killingbeck v. Killingbeck (2005) 711 N.W.2d 759, 269 Mich.App. 132.

Mother convicted of third-degree child abuse:  Father seeking change of custody of out-of-wedlock child established “proper cause” necessary to revisit order awarding custody of child to mother, in paternity proceeding; mother had been convicted of third-degree child abuse, she had lost custody of two of her other children, she was exhibiting inappropriate behavior toward father, and she was attempting to prohibit father from visiting child.Vodvarka v. Grasmeyer (2003) 675 N.W.2d 847, 259 Mich.App. 499.


 

 

 

 

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Child custody appeal – What you can do if the court got it wrong.

Why is the established custodial environment so important in Michigan child custody cases?

The responsibility to provide health insurance for kids.

What happened to physical custody in Michigan?

Health care for kids

Child support statute of limitations.

These resources rapidly change – please contact us to discuss the application of the law to your situation.  Our Divorce attorneys and custody lawyers are ready to help

By:  Daniel Findling

The Divorce Guy, Michigan Divorce Attorneys and Specialists

www.thedivorceguy.com

www.divorceforum.com

877-YOUR FIRM

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