On April 9, 2025, the Michigan Court of Appeals issued a decision requiring the trial court to revisit a case for failing to follow the correct procedure when someone requests a child custody modification, in the case of Nicholas Daniel Letizio vs. Olivia Paul Fachett, the trial Court denied Nicholas’s request without first making a determination if he met the threshold requirement to revist the last custody order.
Child custody modification – threshold requirement.
The threshold requirement requires evidence of either “proper cause” or a “change of circumstance” of sufficient magnitude to revisit a prior child custody decision. If the party requesting the change cannot demonstrate either proper cause or change circumstances, the motion is denied without the court conducting a complete hearing and if the court fails to make a determination of proper cause or change of circumstances, it is in error.
In this case, Nicholas filed a Motion for child custody modification premised on the notion that Olivia failed to ensure the child was completing her homework and generally care for the child. Olivia responded in kind by saying Nicholas recently moved out of the school district to live with his girlfriend and was “extremely intoxicated” during his parenting time over the fourth of July.
The trial court later held a brief hearing on Nicholas’s motion where both attorneys made arguments but no testimony or evidenced was addressed. The trial court ending the hearing by saying: “[W]e are not having an evidentiary hearing.”
The Michigan Court of Appeals vacated (set aside) the trial court’s denial of a hearing and instructed the court to conduct a hearing on the threshold issue of “proper cause” or “change circumstances”.
The key learning is that court’s must follow the process in all cases which beg’s the question, how do you file a motion to modify custody?
Child custody modification – How to proceed the correct way?
The requirement to first demonstrate proper cause or change circumstances is found in the Michigan child custody statute, MCL 722.27(1)(c) which provides grants authority to modify previous custody orders for “. . .proper cause shown or because of change of circumstances. . .”
Proper cause or change circumstances – defined.
Case law provides definitions of “proper cause” or “change circumstances”. The most important case on this issue is Vodvarka vs. Grassmeyer which defines both terms.
What is sufficient “proper cause” for custody modification?
The Vodvarka court provides the best answer:
“. . . 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.” .
What “proper cause” evidence is considered for custody modification?
The Vodvarka once again provides the best answer:
“. . .The phrase “proper cause” is not by the words themselves tied to a change in events as is “change of circumstances.” Rather, proper cause is geared more toward the significance of the facts or events or, as stated earlier, the appropriateness of the grounds offered. However, we believe 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.”
What is sufficient “change of circumstances” for custody modification?
The Vodvarka court provides:
“. . .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.”
What is sufficient “change of circumstances” evidence for custody modification?
The Vodvarka court provides:
“ . . .Because a “change of circumstances” requires a “change,” the circumstances must be compared to some other set of circumstances. And since the movant is seeking to modify or amend the prior custody order, it is evident that the circumstances must have changed since the custody order at issue was entered. Of course, evidence of the circumstances existing at the time of and before entry of the prior custody order will be relevant for comparison purposes, but the change of circumstances must have occurred after entry of the last custody order. As a result, the movant cannot rely on facts that existed before entry of the custody order to establish a “change” of circumstances.”
As for Nicholas and Olivia, Nicholas filed a Motion to Modify Child Custody and the trial court denied Nicholas a hearing on the issue without first determining if he met the threshold requirement. The Michigan Court of Appeals sent the case back to the trial court to fix the error.
A decision on the existence of proper cause or change circumstances is required prior to determining if a case can proceed after a request for custody modification is made. Vodvarka vs. Grasmeyer case is the seminal case on point. If you would like assistance in pursuing a custody modification in Michigan, our specialists can help you navigate the situation and create an action plan for success.
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By: Daniel Findling
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