The decision to modify custody or modify parenting time depends on the gravity of the change being requested. If the change is minor, the modification request is generally considered a request to modify parenting time. If the requested modification is significant, the modification is generally considered a request to modify custody. Distinguishing between the two may be paramount to your success.
It is easy to confuse custody with parenting time. However, they are different. In some ways, parenting time is part of child custody and in other ways it is unique. The statutory definition of a “child custody proceeding” is:
“. . . a proceeding in which legal custody, physical custody, or parenting time with respect to a child is an issue . . . “
The same statute defines a “child custody determination” as:
“. . .a judgment, decree, or other court order providing for legal custody, physical custody, or parenting time with respect to a child.”
Although by definition a parenting time is part of a child custody determination Michigan law treats them differently when there is a request to modify. Twenty years ago, most Michigan divorce judgments distinguished between physical and legal custody. Physical custody identified the parent with the majority of parenting time and legal custody addressed the right to make legal decisions for the child regarding education, health care, religion, and his or her general welfare. The term “physical custody” is now seldom used in a Michigan custody determination. The term being replaced with “parenting time”.
To complicate matters more, sometimes a modification of parenting time in actually a modification of custody. This distinction occurs when a parent is seeking to change who spends the majority of parenting time with the child. (e.g. a modification request by a parent awarded every-other weekend asking to be awarded more than 50% of the time) The legal test to determine if a modification of parenting time is actually a modification of custody is called the established custodial environment.
An established custodial environment exists where, “over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.”
MCL 722.27(1)(c) see also: Foskett v Foskett, 247 Mich App 1, 8, 634 NW2d 363 (2001).
When a parent wants to modify custody or modify parenting time they must first demonstrate ‘proper cause’ or a ‘change of circumstances’. The seminal case on proper cause or a change of circumstance determination in a custody case is Vodvarka v. Grassmeyer, which defines proper cause as: “the existence of an appropriate ground” and change of circumstances as: “the conditions surrounding the custody of the child . . . have sufficiently changed.” The seminal case on ‘proper cause’ or a ‘change of circumstance’ determination in a parenting time case is Shade v. Wright which has a less stringent definition of proper cause or a change of circumstance making it easier to modify parenting time than custody. The Shade court determined that:
“the type of normal life changes that occur during a child’s life and that do not warrant a change in the child’s custodial environment.”
In simple terms, to modify custody there must be a significant change in circumstances. Whereas to modify parenting time normal life changes are sufficient. If a change in parenting time results in a change in the established custodial environment, then the framework set forth in Vodvarka is appropriate. If the change in parenting time does not result in a change in the established custodial environment than the framework is Shade is appropriate.
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By: Daniel Findling