Suppose you are involved in a contested child custody battle and lose. Why can’t you simply refile the case and try again? The answer is provided in the seminal case of Vodvarka v. Grassmeyer. In Vodvarka, the Michigan Court of Appeals created a barrier to changing custody in order to avoid repeated custody evaluations.
Proper cause or change of circumstances – Vodvarka
There is a statutory right to petition a court to change custody. This statutory right is set forth in Michigan Compiled Laws Section 722.27(1)(c) and provides as follows:
(1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may do 1 or more of the following:
. . . modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances . . . “MCL 722.27
How to get a court to hear your request to change custody.
The Vodvarka barrier. The Vodvarka case created a barrier to changing custody by defining both proper cause and change of circumstances. The first barrier is the requirement to look forward, that is a requirement to allege new facts since the entry of the last order that support either proper cause or change of circumstances. This simple requirement prevents someone from arguing the same facts and circumstances over and over again when petitioning a court to change custody and limits what evidence can be considered. Specifically, events after the entry of the last custody order.
The Vodvarka case specifically defined “proper cause” and “change of circumstances”. Proper cause was defined as follows:
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 magnitude to have a significant effect on the child’s well-being. 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. Grassmeyer.
The Vodvarka court defined change of circumstances as follows:
In light of these definitions and purposes, we hold that in order to 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. Again, not just any change will suffice, for over time there will always be some changes in a child’s environment, behavior, and well-being. Instead, 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. This too will be a determination made on the basis of the facts of each case, with the relevance of the facts presented being gauged by the statutory best interest factors.Vodvarka v. Grassmeyer.
It is important to distinguish the notion that proper cause or change of circumstances have different definitions for parenting time, spousal support or child support. For example, to change parenting time, ordinary life changes have been considered sufficient change of circumstances to modify parenting time and insufficient for changing custody.
In sum, prior to changing custody, the party requesting the change must demonstrate first, since the entry of the last child custody order there has been either “proper cause” or a “change of circumstances” before a court will even consider a petition to modify child custody.
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