Child Custody in Michigan—Modification of Custody

 

What is Modification of Custody?

Modification of custody occurs when the Court, based upon a motion by one of the parties, believes that it is in the child’s best interests to alter in some way the existing custodial order. Examples of such changes are as follows;

        1. Changing the home of the child from that of the custodial parent to that of the home of the non-custodial parent.
        2. Changing sole custody to joint legal or joint physical custody, or vice versa.

What are the factors the Court will consider at the Modification hearing in deciding whether the custody of a child should be changed?

  • Child Custody Factors under the Child Custody Act

The court will look at the normal factors under the Child Custody Act. More information about determination of child custody in Michigan can be found in other articles on this website such as Child Custody in Michigan - Initial Determination and Michigan Child Custody Basics. As always, the best interests of the child are the driving considerations.

  • Special Inquiry

The Court will also evaluate if there has been a significant change in the circumstances regarding the care of the children, and if the children have consistently remained in the initial home of the custodial parent, or in other words, if a custodial home has been established since the initial custody order went into effect. Please refer to Paragraphs 3-5 below for further discussion of these factors.

It should be noted that the courts believe based upon child psychologist and social science experts that it is often disruptive and harmful for children to be moved from the comfort of the home where they have been living for some time. This is so even if it appears that the parent wishing to change the custody has a good home and would be a good custodial parent, or even a better one, and has improved his or her situation since the initial custody order. In effect, the Court, before deciding to change custody, will need to be convinced that the children are not being cared for properly; otherwise, the courts will be reluctant to make a change.

What are the unique questions or factors the Court will want to examine in deciding whether custody should change?

    • Has there been a substantial or significant change in circumstances regarding the care of the children since the previous order of custody?

The new facts showing such a change in circumstances must be significant, substantial, or serious, as compared to relatively minor changes. Examples of these serious factors could be as follows:

            • neglect by the custodial parent
            • third parties living in the custodial home who because of their own situation are detrimental to the child living there
            • misuse of alcohol consumption or drugs in the home.
            • physical or mental impairments that may have developed by the custodial parent which have an impact on parenting skills
            • leaving the children unattended
            • failing to attend to the medical care of the children
            • failing to attend to the educational needs of the children
            • immoral activities occurring in the home. (Here it should be noted that the custodial parent’s living with a person of the opposite sex may or may not be significant)
            • child’s preference. Here, the weight and importance of this factor depends upon the age of the child. The older the child, the more weight is given to this factor. .
            • any other substantial or significant new set of facts

Sometimes it is said that, in effect, the party wishing a change, needs to show that the other parent, who has had custody, has in some significant way “fumbled the ball” in the providing of the care for the child.

    • Whether or not since the initial custody order an “established custodial environment” has developed in the home of the existing custodial parent.

When this has occurred, and it usually has, the petitioning party has a more difficult task in convincing the court to change custody. After time has gone by, the custodial parent then has more often than not acquired an “established custodial environment” for the children. In that home, the children usually acquire comfort and familiarity that the court does not want to disrupt.

On the other hand, if in fact the children have not, for various reasons, consistently lived in the home of the parent who was awarded custody originally, then that parent cannot be said to have developed an “established custodial environment”. In this event, the petitioning party has an easier job to be successful in convincing the court.

A clear example where a custodial parent may lose his or her “established custodial environment” is when the children began living  regularly, or even from time to time, in another home, such as the other parent’s, the grandparents’, or another relative’s. .In effect then the children did not acquire a true “home” with the custodial parent, or, if so, later had another “home” or “homes”

 

Since the court is examining the custodial parent’s home to see whether or not custody should change, is an inquiry also made of the non custodial parent and his or her home?

Yes.  The court will also examine the non custodial parent’s situation and all of the facts and circumstances bearing on where the child should be.

The court will always look at the total situation, not just the custodial parent’s, and will need to compare the two parents. The court will want to see how the non custodial parent compares to the custodial parent according to the factors contained in the Child Custody Act. In effect that parent’s home, employment, stability, contacts with the child in terms of how he or she exercised parenting time, health, etc, is also reviewed.

What is the kind, or quality, of legal proof that needs to be presented by the parent wishing to change custody in a Modification of Custody proceeding?

The quality of proof necessary at this kind of proceeding is higher than it was at the time of the divorce. Now it must be “clear and convincing”. At the earlier hearing it just needed to be enough to merely “outweigh” the proof presented by the other parent. The burden on the petitioning parent is so high because of the concern of the court for not wanting to disrupt the home, unless necessary.

To locate free or low cost legal assistance:

  • Visit the Michiganlegalaid.org home page and search for local assistance by entering your zip code in the box marked “Find a lawyer, organization or related service to help you with your problem.” or

  • Look under "attorneys" in the yellow pages to find your local legal aid office, or

  • Contact the Michigan State Bar Lawyer Referral Service at (800) 968- 0738. 

  • Persons age 60 or older, regardless of their income, may be able to receive free advice from the Legal Hotline for Michigan Seniors by calling (800) 347-5297.

This article appears courtesy of Legal Assistance Center of Grand Rapids