If a Parent Wants to Change Custody at a Later Date,
That Parent Has a Hill to Climb


Parties sometimes agree to an outcome at the time of their divorce or child custody proceeding believing that they can change the provisions of that outcome sometime in the future. This is a trap for many people because the law requires “proper cause” or a “change in circumstances” to later modify a custody order or judgment.

MCLA 722.27(1)© provides that a court may:

Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age and, subject to section 5b of the support and parenting time enforcement act, 1982 PA 295, MCL 552.605b, until the child reaches 19 years and 6 months of age.

The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.

The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.

A three-step analysis is applied to motions to change custody.

1. The party moving to change custody must allege and prove that there is “proper cause” to change custody or a “change in circumstances” warranting a change. This is called the “threshhold question” and it is based on the statute set forth above.

In Meinke v Meinke, WLWL 4209344 (Mich App 2007), the Michigan Court of Appeals held: “To establish proper cause meriting a consideration of a custody change, the movant must prove appropriate grounds that have had or could have a significant impact on the children's life to the extent that a reevaluation of the children's custodial situation should be undertaken.” Under Vodvarka v Grasmeyer, 259 Mich App 449 (2003), the Court held that only factual developments that occurred after the preceding judgment or order can be considered in determining proper cause of a change in circumstances. This prevents people from changing attorneys and strategies and then trying to change custody based on the same facts that existed prior to the earlier custody proceeding. Further, the Vodvarka case and the Meinke case both make it clear that the grounds for a finding of “proper cause” must include an allegation that this cause had a “significant impact” on the child.

The second method of reaching the “threshold question” is a “change in circumstances” under the statute set forth above. In Meinke, the Court held: “To constitute a change of circumstances meriting a consideration of a custody change, the movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the children which have had or could have a significant effect on the children's well-being have materially changed.” Whether the threshold question involves “proper cause” or a “change in circumstances,” the inquiry turns on an analysis of the twelve-factor best interest test set forth at MCLA 722.23.

Notably, in Meinke, the moving party complained that the other parent drove with the children after drinking, did not help with homework and did not bathe the children at night along with other complaints. The court held, however, that there was no evidence that the father had been intoxicated while driving, that his occasional failure to help with homework had impacted school performance, or that his failure to bathe the children at night if they were not dirty had been a problem. In fact, the father bathed the children in the morning. This case shows how important it is to apply the best interests test to the analysis and to focus on matters that have a “significant” negative impact on the children.

2. If a party has shown sufficient proper cause or change in circumstances to warrant consideration of a change of custody, the next issue is whether the requested change will effectively change the current “established custodial environment.” The established custodial environment is defined in the statute set forth above. It can be shared between the parties, with the mother primarily, or with the father primarily. If a party wants to go from a week on/week off schedule to a schedule that rotates every two weeks, that is not a change in the shared established custodial environment. On the other hand, if a party wants to go from a shared custodial environment to one in which the father has primary possession, that DOES represent a modification of the established custodial environment.

3. Finally, if a party does, in fact, move to change the established custodial environment, then that party must prove that such a change serves the child’s best interest by “clear and convincing” evidence. In criminal cases, the “evidentiary standard” is “beyond a reasonable doubt,” which is something like having 95% of the facts favor the prosecution. In most civil cases, the “evidentiary standard” is “a preponderance of the evidence,” which is something like having 51% of the facts favor the plaintiff. The intermediate evidentiary standard of “clear and convincing evidence, however, is something like requiring the moving party to have 75% of the facts favor him/her. The reason for this is that the courts want to promote stability in a child’s life, and a change of custody—or a change in the established custodial environment—is considered a major change for the child. There must be clear and convincing evidence that this change would promote the child’s best interest.

The best interest test, MCLA 722.23, requires consideration of the following twelve (12) factors:

(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 continuation of the educating and raising of the child in its 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 deems the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.

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

Conclusion

To change custody, one must first show proper cause or a change in circumstances. If the change requested would modify the established custodial environment, then the moving party must offer clear and convincing evidence that such a change would serve the child’s best interest. The evidence is limited to facts that have developed after the last custody order or judgment was entered by the court. Parties cannot use a motion to change custody as a method of re-trying their case with new counsel or a new theory. As a result, parties must be aware that changing custody at a later date amounts to climbing a steep hill, and they are well-advised to address difficult issues now and not later.