Changing custody
A trial court may enter an order changing custody, however, before a court may consider a modification, the party requesting the change must demonstrate proper cause or a change of circumstances.
On December 16, 2021, the Michigan Court of Appeals issued its opinion in the case of Welch v. Grew. Ms. Welch and Mr. Grew have one child together and were recently divorced. The divorce decree granted them joint legal custody As joint legal custodians, both Mr. Welch and Ms. Grew would share decision-making authority as to important decisions affecting their child (See: MCL 722.26a(7)(b)).
The seminal case on proper cause or a change of circumstances is Vodvarka vs. Grasmeyer.
What is sufficient “proper cause” for changing custody?
Michigan Courts have decided that a party would be hard-pressed to come to court after a custody order was entered and argue that an event of which they were aware (or could have been aware of) before the entry of the order is thereafter significant enough to constitute proper cause to revisit the order. Rather since the entry of the last Order in order to support changing custody, something big or material must have changed.
What is sufficient “change of circumstances” for changing custody?
Change of circumstances requires a “change”. The person requesting a change of custody must demonstrate that since the entry of the last custody order there has been a material change of circumstances to justify modifying the custody award.
Once the initial burden of proper cause or change of circumstances is met, a Court will then consider the 12 best interest of the child factors in determining if changing custody is in the child’s “best interest”.
In Welch v. Grew case, the Michigan Court of Appeals affirmed the trial court’s determination that there was proper cause or change of circumstances. For example:
Ms. Welch changed the child’s school without requesting an agreement from Mr. Grew because she “. . . cannot communicate with [him.]” She also permitted the minor child, at the age of seven, to have one of his ears pierced.
When asked whether she discussed the matter with Mr. Grew beforehand, Ms. Welch responded:
“No. For the record, I don’t ask [Mr. Grew] for permission on anything, because he will not
properly communicate with me.” Mr. Grew testified that Ms. Welch had been taking their child to a therapist without informing him.
In making a finding of proper cause or change of circumstances the court utilized the following four events:
(1) Ms. Welch’s inability to abide by the joint legal custody order;
(2) Ms. Welch’s failure to communicate effectively with Mr. Grew regarding the minor child
(3) Ms. Welch’s unilateral decision-making with respect to the minor child; and
(4) Ms. Welch’s behavior that interrupted Mr. Grew’s relationship with the minor child.
Each of the four proper causes found by the court “have or could have a significant effect
on the child’s life to the extent that a reevaluation of the child’s custodial situation should be
undertaken.” Vodvarka, 259 Mich App at 511.
Moreover, they related to the school record of the minor child (best interest of the child factor (h), and 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” (best interest of the child factor (j).
In other words, Ms. Welch’s refusal to consult with Mr. Grew on important decisions regarding the minor child despite the parties sharing joint legal custody justified considering and subsequently changing custody.
Changing custody in Michigan requires a showing of proper cause agree on parenting time, tensions are reduced and money is saved. In either case, we can help you manage your situation. Let it be our privilege to help.
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