THE CHILD CUSTODY ORDER MUST BE CHANGED ! What do I do?
A common theme clients come to me with after a divorce judgement is in place involves dissatisfaction with the award of physical and legal custody in their divorce. Usually I was not involved in the original action.
I am a Family Law Flint Divorce child custody attorney. Call 235-1970 for Terry Bankert if you have additional questions.
WHAT IS THE UNDERLYING ORDER CONCERNING CHILD CUSTODY.
Some judgements done with the best of intentions just will not work. The cause varies. Court want child custody decisions to be hard to change. My analysis usually begins by asking what is the current order of custody and what is different since that order was entered?
ISSUES YOU NEED TO KNOW IN YOUR ATTEMPT TO CHANGE CUSTODY
Under MCL 722.27(1)(c), before modifying a custody order, the court must consider three issues:
- YOU the moving party has met the initial burden of establishing either “proper cause” or a “change of circumstances;”
- Whether there is an established custodial environment; which will establish the burden of proof or how hard your task will be and
- Whether the modification is in the best interests of the child. 
WHAT HAVE YOU SAID IS THE REASON TO CHANGE CUSTODY. WHAT IS YOUR PROPER CAUSE OR CHANGE IN CIRCUMSTANCES.
THE FIRST QUESTION THE JUDGE MUST ANSWER.
The threshold question in any change of custody is whether the moving party has established proper cause or change of circumstances. MCL 722.27(1)(c); Vodvarka v. Grasmeyer, 259 Mich App. 499, 675 NW2d 847 (2003).
YOU WILL HAVE THE BURDEN OF PROOF IS YOU WANT TO CHANGE CHILD CUSTODY.
The moving party has the burden of proof by a preponderance of the evidence to establish that either proper cause or a change of circumstances exists. Vodvarka, supra. at 509. 
WHAT REASONS FOR THE CHANGE IN CUSTODY WILL THE JUDGE THINK ARE PROPER CAUSE.
Proper cause means one or more appropriate grounds that 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, supra. at 511. 
THE ATTORNEY OPPOSING YOUR CHANGE WILL ASK FOR A VODVARKA HEARING .
- In Vodvarka, the Court of Appeals held that grounds for proper cause should be relative to the twelve best interest factors contained in MCL 722.23(a)–(l). The grounds presented should be “legally sufficient,” i.e., they must be of a magnitude to have a significant effect on the child’s well-being to the extent that revisiting the custody order would be proper. Vodvarka, supra. at 512. 
EXAMPLES OF CHANGE IN CIRCUMSTANCES
- In order for there to be a change of circumstances, the moving party must show 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. Again, not just any change will suffice, for over time there will always be changes in a child’s environment, behavior and well-being. Instead, the evidence must demonstrate something more than the normal life changes (both good and bad) that occur in the life of a child, and there must be at least some evidence that material changes have had or will almost certainly have an effect on the child.Vodvarka, supra. at 513–514. 
- Evidence of the circumstances existing at the time of and before the 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. The moving party cannot rely on facts that existed before entry of the custody order to establish a “change” of circumstances. Vodvarka, supra. at 514. 
- A change in economic circumstances, standing alone, is insufficient to warrant revisiting a previously entered child custody order. Further, those concerns are more appropriately addressed through an increase in the child support paid to the custodial parent following a properly filed motion to modify child support. A decline in child’s grades was insufficient to constitute a change in circumstances sufficient to warrant modification of parties’ joint custody arrangement to change sole physical custody from mother to father; child was not in danger of failing any subject, and the decline in child’s grades could have been attributable to child’s change in schools or the different educational materials. Corporan v. Henton, 282 Mich. App. 599, 766 N.W.2d 903 (2009). 
- The 2006 judgment of divorce (JOD) contained clause that purported to allow the parties child to be moved out of Michigan without court approval and that the provisions of MCL 722.31 do not apply as the plaintiff mother had sole legal custody. Shortly after the entry of the JOD, the mother moved to Toronto, Canada. The father was still afforded parenting time, although less frequently than before. Father filed a motion to modify legal custody and to restore his parenting time. The trial court held that the clauses in the JOD allowing movement out of the state of Michigan were unenforceable and that a change in legal custody and parenting time was in the best interest of the child claiming the father met this burden by clear and convincing evidence. The Court of Appeals reversed, holding that a mere change in residence is not enough to qualify as a change in circumstance or proper cause. Absent an alteration in an established custodial environment, changing residence is not enough. Brausch v. Brausch, 283 Mich.App. 339; 770 NW2d 77 (2009).
- In Gerstenschlager v. Gerstenschlager, 292 Mich App 654; 808 NW2d 811 (2011) the trial court found there was a change of circumstances existed where defendant had taken in boarders and the child was getting older. The Court of Appeals reversed and remanded to the Trial court, finding that the fact that a child is growing up, the fact that a child has started high school, and the fact that the child faces scheduling changes relating to school and extra-curricular activities “are the type of normal life changes that occur during a child’s life and that do not warrant a change in the child’s custodial environment.” The Court also found that the evidence suggested that the boarders’ presence in the house was a matter of minimal consequence to the child. 
WHAT IS AN ESTABLISHED CUSTODIAL ENVIRONMENT
- The definition of an established custodial environment is found in MCL 722.27(1)(c), which states as follows:
- 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. 
- The Court must determine whether an established custodial environment exists before it makes a determination regarding the child’s best interests in a custody proceeding. Whether an established custodial environment exists is a question of fact. Mogle v. Scriver, 241 Mich App 192, 197; 614 NW2d 696 (2000).
- An established custodial environment, for the purposes of determining an appropriate child custody arrangement, is one of significant duration in which the relationship between the custodian and child is marked by qualities of security, stability and permanence; however, an established custodial environment need not be limited to one household, it can exist in more than one home.Mogle, supra. at 197. See also MCL 722.27(1)(c).
- Custody orders, by themselves, do not establish a custodial environment. The court will look to the actual circumstances. Bowers v. Bowers, 198 Mich App 320, 497 NW2d 602 (1993).
- In Shann v. Shann, 293 Mich App 302, 809 NW2d 435 (2011) the Court of Appeals held that the fact that CPS removed the child from the home is in and of itself sufficient evidence of a change in circumstances to warrant a trial court to consider a change of custody.
- The Trial Court granted Plaintiff a change of domicile from Plymouth to Windsor (less than 100 miles). The move would result in the loss of Defendant’s weeknight visits. The Court of Appeals affirmed the trial court’s ruling that the established custodial environment would not change if Defendant were awarded additional weekend visitation, which would allow him to have the same number of overnights. The Court also noted that Defendant could attend the child’s school functions. Gagnon v. Glowacki, 295 Mich App 557, 815 NW2d 141 (2012).
WHAT DO YOU HAVE TO PROVE AND BY HOW MUCH.
The court will take testimony and accept evidence that will be used in a Best Interest analysis concerning your case. The Best Interest REFERS TO A State Statute MCL 722.23 arranged by alphabetical letter a-l, The court will weigh and measure each element. But since the the system does not like to change custody your burden may be high.
WHAT IS THE STANDARD OF PROOF.
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. MCL 722.27(1)(c). If no established custodial environment exists, custody may be modified by showing that a change would be in the best interests of the child by a preponderance of the evidence. Hall v. Hall, 156 Mich App 286, 289; 401 NW2d 353 (1986).
The best interests of the child is defined in MCL 722.23, which states:
As used in this act, “best interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court:
(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 to continue the education and raising of the child in his or her 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 considers the child to be of sufficient age to express preference.
(j) 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 or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
This is just an overview. I would not suggest doing this without an attorney.
Terry Bankert Flint Child Custody Lawyer 810-235-1970.
Modification of Custody
Hon. Linda S. Hallmark, Oakland County Probate Court