Changing Custody of a Child

S T A T E O F M I C H I G A NC O U R T O F A P P E A L S
Leder v Leder 7/26/07 NO:275237
Posted here with modification of style by Terry Bankert

http://attorneybankert.com/
full article
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REQUIREMENTS FOR CHANGING CUSTODY OF A CHILD

In a recent case a Mother appeals as of right the trial court’s order denying her motion to change the custody of the minor children born during her marriage to defendant. On cross-appeal, defendant challenges the trial court’s determination that he had been uncooperative with plaintiff regarding legal issues related to the children and the court’s imposition of additional requirements to ensure cooperation in the order. The Court of Appeals did not disagree with the trial court.

II. No Change In Circumstances Or Proper Cause For A Change Of Custody

This Court applies three standards of review in custody cases. The great weight of theevidence standard applies to all findings of fact. A trial court’s findings regarding the existenceof an established custodial environment and regarding each custody factor should be affirmedunless the evidence clearly preponderates in the opposite direction.

An abuse of discretionstandard applies to the trial court’s discretionary rulings such as custody decisions. Questions oflaw are reviewed for clear legal error.

A trial court commits clear legal error when it incorrectlychooses, interprets, or applies the law. Vodvarka v Grasmeyer, 259 Mich App 499, 507-508; 675 NW2d 847 (2003). [Citations omitted.]

A trial court may modify a custody award when the moving party establishes that a"change in circumstances" has occurred or when the party establishes proper cause forreconsideration. MCL 722.27(1)(c); Phillips v Jordan, 241 Mich App 17, 24; 614 NW2d 183(2000).

To establish "proper cause," the moving party must present evidence of "one or moreappropriate grounds that have or could have a significant effect on the child’s life to the extentthat a reevaluation of the child’s custodial situation should be undertaken." Vodvarka, supra at511.

To establish a "change in circumstances," the moving party "must prove that, since theentry of the last custody order, the conditions surrounding custody of the child, which have orcould have a significant effect on the child’s well-being, have materially changed." Id. at 513.The moving party must establish something beyond "normal life changes" in order to justify thecourt’s reconsideration. Id. at 513-514. "[W]hen a modification of custody would change theestablished custodial environment of a child, the moving party must show by clear andconvincing evidence that it is in the child’s best interest." Phillips, supra at 25.

However, thetrial court may not reconsider the best interest factors until the moving party has establishedproper cause or a change in circumstances by a preponderance of the evidence. Vodvarka, supraat 509.

In determining whether a plaintiff has established proper grounds for reconsidering theexisting custody order, a trial court may use the best interest factors of MCL 722.23 as a guide.Vodvarka, supra at 511-512. MCL 722.23(c) requires the court to consider the "capacity anddisposition of the parties involved to provide the child with . . . medical care."

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