There is a barrier to modification of custody, child support, spousal support (alimony) and parenting time. The barrier is proper cause or change of circumstances. In a prior article, we examined the seminal case on the subject, Vodvarka v. Grassmeyer which defines both proper cause and change of circumstances in the context of a child custody case.
Proper cause or change of circumstances – Vodvarka
We also explored proper cause or change of circumstances in the context of spousal support cases, child support cases and parenting time cases.
Proper cause or change of circumstances – the Brown case.
On December 22, 2020, the Michigan Court of Appeals the issue of proper cause or change of circumstances in the case of Brown v. Brown.
In the Brown case, the mother appealed the trial court’s order granting joint physical and legal custody to the father and the Court of Appeals reversed the trial court’s ruling.
The Brown family divorced in 2013 and mother was awarded sole physical and legal custody of the parties two children. In 2016, the mother petitioned the court to move with the children (change domicile) to Georgia and the court authorized the move, granting father specific parenting time.
In 2018, the father filed a motion alleging mother had repeatedly violated the trial court’s orders and that the children were now living in Battle Creek Michigan. The trial court held mother in contempt of court for denying father’s parenting time and awarded father overnight parenting time.
In 2019, father filed a motion to change custody. He argued mother is now working as a flight attendant and has left the children with their grandmother at the evidentiary hearing the Friend of the Court determined that there was proper cause or change of circumstances for revisiting the existing custody arrangement. The Friend of the Court issued its recommendation to the trial court and after examining the best interest of the child factors granted father joint physical and legal custody.
An appeal followed mother’s objection to the Friend of the Court recommendation which was denied by the trial court.
The Michigan Court of Appeals determined that there was proper cause or change of circumstances to revisit the last custody order because 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 wellbeing, have materially changed. However, the court of appeals reversed the trial court because mother had an established custodial environment with the children. An established custodial environment defines who the children naturally looks to for guidance, discipling, the necessities of life and parental comfort. Since the children looked to mother, the father was required to show by clear and convincing evidence that it was in the best interest of the children to change custody.
The Court of Appeals determined that there was not clear and convincing evidence to change custody and reversed the trial courts decision to change custody.
Simply put, the case of Brown v. Brown supports the idea that proper cause or change of circumstances is only a threshold (the first step) in a child custody case. Even if you can show proper cause or change of circumstances, there is a long way to go to change custody in Michigan.
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By: Daniel Findling