Change of custody – In three steps!

There are three (not so simple steps) when requesting a change of custody under Michigan law. After all when circumstances change (pun intended) it may be necessary to re-examine a child custody award and seek modification.

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Change of Custody STEP 1: The threshold (Vodvarka inquiry).

MCL 722.27(1)(c) provides that in a child custody dispute, the trial court, for the best interests of the child at the center of the dispute, may “modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances.”

As a result, the first step in any custody modification request is to address this threshold inquiry of proper cause or change of circumstances which are the conditions that must be met prior to a court modifying an existing custody order.

The most important case which defines the threshold inquiry is Vodvarka vs. Grasmeyer as proper cause or change of circumstances. According to Vodvarka, the threshold requirements “. . .are intended to erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders.” Under Michigan law, without establishing either proper cause or a change of circumstance, you cannot modify an award of child custody. .

The Vodvarka court defines proper cause as:

“. . . 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 vs. Grassmeyer – proper cause.

The Vodvarka court defines change of circumstances as:

. . .we hold that in order to establish a “change of circumstances: ”. . . a movant [the person filing the motion] 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.”

Vodvarka vs. Grassmeyer – change of circumstances.

Change of Custody STEP 2: The Established Custodial Environment

Michigan Compiled Laws section 722.27(1)(c) provides the following definition of an Established Custodial Environment:

. . .The custodial environment of a child is established if over an appreciable period of 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)

In Pierron v Pierron, the Michigan Supreme Court discussed the next step of the analysis if proper cause or a change of circumstances is established, stating:

If the proposed change would modify the established custodial environment of the child, then the burden is on the parent proposing the change to establish, by clear and convincing evidence, that the change is in the child’s best interests.

. . .

On the other hand, if the proposed change would not modify the established custodial environment of the child, the burden is on the parent proposing the change to establish, by a preponderance of the evidence, that the change is in the child’s best interests.

Pierron v. Pierron Michigan Supreme Court Docket No. 138824 decided May 11, 2020.

Simply put, if a child looks to one parent for the regular necessities of life, a court will not grant a change of custody absent a showing of clear and convincing evidence to minimize unwarranted and disruptive changes of custody orders.

Clear and convincing evidence requires evidence that the claim is very highly probable and is one of the highest burdens to meet in a civil case; and

Preponderance of the evidence which requires evidence that the claim is more likely than not.

Change of Custody STEP 3: The Statutory Best Interest Factors

The third and final step in any change of custody case is examining the 12 statutory best-interest factors set forth in MCL 722.23. It is important to recognize that although a trial court must determine whether each of the best-interest factors applies, if a factor does not apply, the trial court need not address it any further. Furthermore, there is no requirement to give equal weight to each best interest factor, rather the facts and circumstances of the case may dictate how much weight a specific factor is given.

The statutory best-interest factors are set forth in MCL 722.23 and the party requesting a change of custody must prove by the applicable burden of proof (clear and convincing or preponderance of the evidence) that it is in the child’s best interest to change custody.

The best interests of the child means the sum total of the following factors to be considered, evaluated, and determined by the court: (hyperlinks provide details regarding the factor)

(a) The love, affection, and other emotional ties existing between the parties
involved and the child.

(b) The capacity and disposition of the parties involved to give the child
love, affection, and guidance and to continue the education and raising of the child
in his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child
with food, clothing, medical care or other remedial care recognized and permitted
under the laws of this state in place of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or proposed custodial
home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court considers the child to
be of sufficient age to express preference.

(j) The willingness and ability of each of the parties to facilitate and
encourage a close and continuing parent-child relationship between the child and
the other parent or the child and the parents. A court may not consider negatively
for the purposes of this factor any reasonable action taken by a parent to protect a
child or that parent from sexual assault or domestic violence by the child’s other
parent.

(k) Domestic violence, regardless of whether the violence was directed
against or witnessed by the child.

(l) Any other factor considered by the court to be relevant to a particular
child custody dispute.

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. Let it be our privilege to help.

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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 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.