On September 12, 2024, the Michigan Court of Appeals issued its opinion in the case of Curtis vs. Curtis. At trial, Mr. Curtis filed a Motion to Modify Parenting Time and his Motion to allow the children to play travel baseball and his request was denied. He requested appellate review.
The parties divorced in September 2017 and share joint legal custody of their two children. The Judgment of Divorce requires the parties to “mutually agree” on extracurricular activities. Mr. Curtis (Dad) wanted to register the children to play travel baseball and Ms. Curtis (mom) would not agree, complanting about the cost and time committment. The trial court ruled in favor of mom and Dad appealed.
When deciding a motion to modify parenting time, the trial court must first determine if there is either proper cause or a change in circumstance in accordance with the case of Shade vs. Wright. However in the Curtis case, this issue was not addressed on appeal as all parties agreed that the threshold requirement was satisfied.
Second, the trial court must determine the burden of proof to use (‘preponderance of the evidence’ or ‘clear and convincing evidence’). Preponderance of the evidence is a low burden (think proving something by 50.01%) and clear and convincing evidence is a very high burden (think proving something by 90+%). The burden of proof is determined after determining if an established custodial environment exists.
“The court shall not modify or amend its previous judgments or orders or issue a new order, as to change the established custodial environment of a child unless there is clear and convincing evidence that it is in the best interest of a child. . .”
So what exactly do you have to “prove” when modifying parenting time?
Parenting time is governed by statute. Specifically, MCL 722.27a. The parenting time statute provides that parenting time “shall be granted in accordance with the best interests of the child”. The legislature identified 12 “best interest factors” which are defined in MCL 722.23.
After considering the best interest factors, the parenting time statutue (MCL 722.27a (7)(a-i) lists additional considerations when granting parenting time such as the division and cost of transporting the child.
On appeal, the Michigan Court of Appeals examined the 12 best interest factors and the parenting time statute and affirmed (agreed with) the trial court determining that the trial court decision was not against the great weight of the evidence. Since the parents could not agree on baseball participation, the children are not playing baseball as the trial court determined it was not in the children’s best interest after considring the parenting time statute.
By: Daniel Findling (c) 2024.
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