MICHIGAN CHANGE PARENTING TIME MINI BRIEF. By Terry R. Bankert P.C. FLINT DIVORCE ATTORNEY (810) 235-1970, http://www.attorneybankert.com/
[CAPS attribute to Bankert,current to 5/3/11] For a more complete discussion of matrimonial law see http://flintdivorcelawyer.blogspot.com/
Q; Parties have joint legal and physical custody. In the last order 05/06/09 One parent has been designated summer parent and one parent has bee designated winter parent. The minor child is 9 years old and in the 3rd grade. Prior to the last order the parties shared equal parenting time. The summer parent desire to cause the parenting time order to be changed to allow him to be the winter parent. On these facts alone what is the law of Michigan and how will it be applied.
A: THIS CAUSE NEEDS AN EXPERT AND GAL AND A FOCUS ON THE BOND BETWEEN SUMMER PARENT AND CHILD. BEST ARGUMENT IS THAT IT IS THE CHILDS BEST INTEREST TO ROTATE THE PARENTS WINTER SUMMER STATUS.
WHAT SHOULD PARENTING TIME BE?
Parenting Time[c]
1. A. Parenting Time Parameters[c]
The guiding statute on parenting time is MCL 722.27a (Exhibit 4). Some of the main premises of the statute are these (citations are omitted):
“Parenting time shall be granted in accordance with the best interests of the child.”
“It is presumed to be in the best interests of a child for the child to have a strong relationship with both of his or her parents.” [c]
“[P]arenting time shall be granted to a parent in a frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent granted parenting time.” [c]
“A child has a right to parenting time with a parent unless it is shown on the record by clear and convincing evidence that it will endanger the child’s physical, mental, or emotional health.”
“Parenting time shall be granted in specific terms if requested by either party at any time.”[c]
When advocating for the frequency, duration, and type of parenting time, use the following statutory factors when appropriate:
(a) The existence of any special circumstances or needs of the child.[c]
(b) Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing.[c]
(c) The reasonable likelihood of abuse or neglect of the child during parenting time.[c]
(d) The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.[c]
(e) The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time.[c]
(f) Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.[c]
(g) Whether a parent has frequently failed to exercise reasonable parenting time.[c]
(h) The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent.[c]
(i) Any other relevant factors. [MCL 722.27(6)] [c]
Michigan Parenting Time Guideline
In an effort at providing guidance and establishing some uniformity, the State Court Administrative Office has published a 43-page document entitled “Michigan Parenting Time Guideline,” available at http://courts.michigan.gov/scao/resources/publications/manuals/focb/pt_gdlns.pdf.
These are recommendations only, not requirements. [C]
Parenting Time Modification WHAT ARE THE FACTORS IN THIS CAUSE
A. General Rules
PARENTING TIME MODIFICATIONS
MICHIGAN CHILD CUSTODY ACT IS THE CONTROLING LAW.
§4.16 Modifications of parenting time are decided under the Child Custody Act. See MCL 722.27. [a]
MCL 722.27 Child custody disputes; powers of court; support order; enforcement of judgment or order.
AUTHORITY FOR ACTIONS, WE SEE THE FIRST OF MANY REFERENCES TO THE BEST INTEREST OF THE CHILD.
http://michiganbestinterestofthechild.blogspot.com/
Sec. 7.
(1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may do 1 or more of the following:
CHILD SUPPORT MAY BE ORDERED
(a) Award the custody of the child to 1 or more of the parties involved or to others and provide for payment of support for the child, until the child reaches 18 years of age. Subject to section 5b of the support and parenting time enforcement act, 1982 PA 295, MCL 552.605b, the court may also order support as provided in this section for a child after he or she reaches 18 years of age. The court may require that support payments shall be made through the friend of the court, court clerk, or state disbursement unit.
DID YOU KNOW THE CHILD CUSTODY ACT ALLOWS SPECIFICALLY FOR GRANDPARENT PARENTING TIME
(b) Provide for reasonable parenting time of the child by the parties involved, by the maternal or paternal grandparents, or by others, by general or specific terms and conditions. Parenting time of the child by the parents is governed by section 7a.
AUTHORITY TO MODIFY PARENTING TIME ORDERS
(c) 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.
IF CHANGE IN PARENTING TIME CHANGES THE CUSTODIAL ENVIRONMENT THE BURDEN OF PROOF IS CLEAR AND CONVINCING EVIDENCE
http://matrimonialdivorcelawandburdenofproof.blogspot.com/
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 COURT MUST DECIDE ON THE CUSTODIAL ENVIRONMENT
http://michigancustodialenvironment.blogspot.com/
WHAT IS THE CUSTODIAL ENVIRONMENT
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.
OTHER CONSIDERATIONS
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.
MILITARY PARENTS
If a motion for change of custody is filed during the time a parent is in active military duty, the court shall not enter an order modifying or amending a previous judgment or order, or issue a new order, that changes the child's placement that existed on the date the parent was called to active military duty, except the court may enter a temporary custody order if there is clear and convincing evidence that it is in the best interest of the child. Upon a parent's return from active military duty, the court shall reinstate the custody order in effect immediately preceding that period of active military duty. If a motion for change of custody is filed after a parent returns from active military duty, the court shall not consider a parent's absence due to that military duty in a best interest of the child determination.
USE OF A GUARDIAN AD LITEM
(d) Utilize a guardian ad litem or the community resources in behavioral sciences and other professions in the investigation and study of custody disputes and consider their recommendations for the resolution of the disputes.
OTHER REASONABLE ACTION
(e) Take any other action considered to be necessary in a particular child custody dispute.
GRAND PARENTS CAN PETITION IN
(f) Upon petition consider the reasonable grandparenting time of maternal or paternal grandparents as provided in section 7b and, if denied, make a record of the denial.
CHILD SUPPORT
(2) A judgment or order entered under this act providing for the support of a child is governed by and is enforceable as provided in the support and parenting time enforcement act, 1982 PA 295, MCL 552.601 to 552.650. If this act contains a specific provision regarding the contents or enforcement of a support order that conflicts with a provision in the support and parenting time enforcement act, 1982 PA 295, MCL 552.601 to 552.650, this act controls in regard to that provision. MCL 722.27
PARENTS MAY MOTION THE COURT TO CHANGE PARENTING TIME
Parties may modify the parenting time provisions of their divorce judgment by agreement, or by filing a motion (see SCAO form FOC 65, Motion Regarding Parenting Time). The Friend of the Court may also move the court to modify parenting time.[b]
FOC FORMS
The Friend of the Court must make forms and instructions available for a party to request a modification of parenting time without benefit of counsel. See §7.31.[a]
http://courts.michigan.gov/scao/courtforms/domesticrelations/custody-parentingtime/foc65.pdf
If there is a postjudgment parenting time dispute in an open Friend of the Court case, after conducting an evaluation commensurate with the dispute, the Friend of the Court may file a motion for modification of the parenting time order to ensure parenting time, unless contrary to the best interests of the child. MCL 552.641(1)(c) and .517d(1).
FOC MODIFICATIONS
The motion must be accompanied by a written Friend of the Court report and recommendation. If neither party objects within 21 days after receiving notice from the Friend of the Court of the recommended modification, the Friend of the Court may submit a modified order for adoption by the court. See §7.31 for a fuller discussion of the notice requirements. If objections are filed, the motion for modification of parenting time must be noticed for hearing before a judge or referee. [a]
At the hearing, the judge or referee may admit a statement of fact in the office’s report or recommendation as evidence to prove a fact relevant to the proceeding, but only if all parties stipulate to or no party objects to the admission of the statement of fact and no other evidence is presented concerning the fact to be proved. MCL 552.517d(4). [a]
For a discussion of change of domicile, see §3.26.
B. Considerations in Modifying Parenting Time Orders
BEST INTEREST FACTORS AND CLEAR AND CONVINCING EVIDENCE IF CUSTODIAL ENVIRONMENT CHANGED
“[I]f a requested modification in parenting time amounts to a change in the established custodial environment, it should not be granted unless the trial court is persuaded by clear and convincing evidence that the change would be in the best interest of the child.” Brown v Loveman, 260 Mich App 576, 595, 680 NW2d 432 (2004). In Powery v Wells, 278 Mich App 526, 752 NW2d 47 (2008), evidence showed that if plaintiff mother moved less than 100 miles (from Ludington to Traverse City), either she or defendant father would be relegated to the role of “weekend” parent. The court held that any modification of parenting time based on the move would amount to a change in the established custodial environment, thus requiring a best interest analysis.[b]
ON A CHANGE IN PARENTING TIME THE COURT DOES NOT HAVE TO MAKE A FINDING ON ALL THE ELEMENTS OF THE "BEST INTEREST"
§4.17 In general, the same best interests factors and parenting time factors discussed in §§4.6–4.7 are relevant in modifying parenting time provisions. In a pure parenting time dispute, the trial court need not make specific findings on each best interests factor, but may focus solely on the contested issues. Olepa v Olepa, 151 Mich App 690, 702, 391 NW2d 446 (1986) (dispute over grandparenting time). [a]
WHAT IS THE CURRENT CUSTODIAL ENVIRONMENT? TO CHANGE IT REQUIRES CLEAR AND CONVINCING EVIDENCE THAT IT IS IN THE CHILDS BEST INTEREST TO CHANGE
Established Custodial Environment
MCL 722.27 (c); MSA 25.312 (7) provides that:
“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.” Pierron v Pierron, 486 Mich 81; 782 NW2d 480 (May 11, 2010) [E]
CLEAR AND CONVINCING EVIDENCE THE TEST
“[I]f a requested modification in parenting time amounts to a change in the established custodial environment, it should not be granted unless the trial court is persuaded by clear and convincing evidence that the change would be in the best interest of the child.” Brown v Loveman, 260 Mich App 576, 595, 680 NW2d 432 (2004). See Powery v Wells, 278 Mich App 526, 752 NW2d 47 (2008) (where evidence showed that if plaintiff mother moved less than 100 miles (from Ludington to Traverse City), either she or defendant father would be relegated to role of “weekend” parent, modification of parenting time based on move would amount to change in established custodial environment, requiring best interests analysis). [a]
CASE EXAMPLES
Modifications to parenting time orders were considered in the following circumstances:
•Where a minor child is in high school and desires to participate in more social and extracurricular activities, which the geographical distance between her parents’ homes in Michigan and Ohio make impossible, proper cause or change of circumstances sufficient to modify parenting time exists as long as these changes do not affect the established custodial environment. Shade v Wright, No 296318, 2010 Mich App LEXIS 2281 (Dec 2, 2010).
VODVARKA DOES NOT CONTROL IN PARENTING TIME CASE
The Shade court explained that the definitions of proper cause and change of circumstances in Vodvarka v Grasmeyer, 259 Mich App 499, 675 NW2d 847 (2003) (a custody case) did not control in this case, which involved a modification of parenting time that would not result in a change in the established custodial environment. The court opined that the focus of parenting time is to foster a strong relationship between the child and the parent. Therefore, normal life changes, which do not constitute proper cause or a change of circumstance sufficient to justify a change of custody, are precisely the types of considerations a court should review in determining requests for parenting time modifications.[a]
RELIGIOUS REASONS
•In Deal v Deal, 197 Mich App 739, 496 NW2d 403 (1993), it was not an abuse of discretion to modify a parenting time order over the custodial parent’s argument that the modification would interfere with weekly religious observances. The trial court appropriately weighed the needs of the children to spend adequate time with their father, school and work schedules, and a psychologist’s testimony that the children would not be harmed by the arrangement.[a]
SPLIT TRANSPORTATION COSTS
•In Prettyman v Prettyman, 348 Mich 206, 82 NW2d 475 (1957), where the mother took the children to Texas after the divorce and denied the husband parenting time, the court approved a modification whereby the children were to visit the husband from July 15 to September 1 each year, with each party paying transportation one way.[a]
ALCOHOL
•After the mother controlled her alcoholism, the judgment in Knowles v Knowles, 340 Mich 238, 65 NW2d 772 (1954), was modified to allow the mother to have the children for six weeks instead of one month each summer and also for half the Christmas vacation each year.[a]
PARENT REMARRIED
•In Kane v Kane, 314 Mich 529, 22 NW2d 773 (1946), where the father had remarried and moved into his own home and desired more frequent contact with his child, the court increased his parenting time.[a]
CONSTRUCTIVE FATHER
•In Stevenson v Stevenson, 74 Mich App 656, 254 NW2d 337 (1977), the father was denied specific parenting time where the child had not seen his father in 11 years, considered the stepfather his real father and his half-brothers true brothers, and was stabilized in the home environment.[a]
BOY FRIEND OR GIRL FRIEND
•A noncustodial parent’s parenting time rights may not be canceled solely because he or she is living with someone to whom the parent is not married. Snyder v Snyder, 170 Mich App 801, 429 NW2d 234 (1988).[a]
IN THIS CAUSE NEITHER PARENT HAS THE SOLE CUSTODIAL ENVIRONMENT
EXAMPLE
Parties were divorced in 2006 and the Judgment of Divorce awarded Plaintiff/mother and
Defendant/father joint legal and physical custody, Plaintiff/mother was allowed to move to Ohio and Defendant/father had two weekends per month with Plaintiff/mother providing all transportation.[d]
In May, 2008, Plaintiff/mother filed to change parenting time and Defendant/father countered with a motion seeking sole physical custody. [d]
The trial court held a de novo hearing, denied the change
of custody and modified parenting time giving Defendant/father an extended weekend during the
academic year and substantially all of the summer. [d]
Trial court attempted to provide Defendant/father with the same number of overnights. Trial court did not make explicit findings on the record regarding probable cause or change of circumstance. Defendant/father did not appeal custody decision, but appealed the change in parenting time.[d]
Plaintiff/mother alleged that Defendant/father was living with a woman now who suffered
depression and was a primary care giver to the child and the child expressed a preference not to
spend significant time with her. Also, Plaintiff/mother argued the cost of fuel had increased and
Defendant/father would not contribute to transportation costs.[d]
Court of Appeals analyzed and concluded the facts alleged by Plaintiff/mother did not rise
to either proper cause or change of circumstances under Vodvarka to change custody. However, the Court of Appeals did find the allegations sufficient to modify parenting time where the change in parenting time did not change the established custodial environment: “With our holding today, we do not seek to precisely define the proper cause or change of circumstance necessary to change parenting time. Our holding is limited to our conclusion that the normal life changes that occurred with the minor child in this case are sufficient to modify parenting time”. Id., page 8. [d]
OUR FOCUS IN THIS CAUSE IS MAINTAINING THE STRONG BOND BETWEEN CHILD AND SUMMER PARENT
The Court of Appeals stated that if the established custodial environment will not be changed
by the parenting time modification requested then a more expansive definition of proper cause
or change of circumstance is appropriate. In explaining the holding the Court of Appeals
distinguished a custody proceeding which must be primarily concerned with the stability in a child’s environment to parenting time which is meant to focus on strong relationship between the child and the parent.
WHAT ARE THE RELEVANT BEST INTERST FACTORS
The Court further noted that custody decisions must focus on all twelve of the best interest factors listed in the Child Custody Act (MCL 722.23) whereas parenting time decisions are based only on the relevant best interest factors and a complete set of statutory factors unique only to issues of parenting time. (MCL 722.27a).
The Court of Appeals chose not to specifically define what the expanded definition should be for proper cause or change of circumstance in parenting time modification cases:[d]
“With our holding today, we do not seek to precisely define the
proper cause or change of circumstance necessary to change
parenting time. Our holding is limited to our conclusion that the
normal life changes that occurred with the minor child in this case are
sufficient to modify parenting time”[d]
ANOTHER EXAMPLE
Carpenter v Carpenter, unpublished opinion per curium of the Court of Appeals, issued
November 16, 2010 (Docket No. 296924) - Ottawa County - Affirmed but remanded for parenting time access. [d]
Court of Appeals affirmed the trial court’s award of joint legal custody with physical custody
to Defendant/father and affirmed the parenting time schedule but remanded the case back to the trial court to determine a specific schedule to accomplish the reasonable access ordered by telephone and electronic access. Plaintiff/mother had requested a specific schedule for telephone access but the trial court had stated that it wanted to wait and see how things progressed. MCL 722.28 requires the trial court to grant a specific schedule if requested by a party.[d]
USE OF EXPERT TESTIMONY
Court Appointed Experts on Issues of Custody and Parenting Time [d]
1. Generally, the court, either on its own motion, or on motion of either party, may appoint an expert witness under MRE 706, to provide testimony on the issue of custody or parenting time. [d]
B. Nothing Prevents Either Party from Hiring Their Own Expert Witness, Whether the Court Appoints One or Not [d]
C. Limitations on Basis of Expert Opinion
MRE 702 was recently amended. It reads as follows:[d]
If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence, or to determine a fact in issue, a witness qualified as an expert by knowledge, skills, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. [d]
MRE 703 was recently amended. The facts or data upon which an expert bases their opinion or inference shall be in evidence. The Rule does not restrict the discretion of the court to receive expert opinion testimony subject to the condition that the factual basis of the opinion be admitted into evidence thereafter. [d]
MRE 1101 was recently amended to provide that the Michigan Rules of Evidence, except those with respect to privileges, do not apply to the court’s consideration of a report or recommendation submitted by the Friend of the Court pursuant to MCL 552.505(1)(d) or (e) which indicates that the Friend of the Court Report “may include reports and evaluations by outside persons or agencies if requested by the parties or the court.”[d]
See Introducing The New MRE 702, 703 and 1101: Responding To Dramatic Changes In The Rules Regarding Expert Testimony, Carlo J. Martina, Michigan Family Law Journal, June/July 2004 for more information [d]
Source
[a]
Michigan Family Law Benchbook ch 4 (ICLE 2d ed 2006), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=04
(last updated 04/22/2011).
[b]
Michigan Family Law ch 12 (Hon. Marilyn J. Kelly et al eds, ICLE 6th ed 2004), at
http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2004553510&chapter=12
(last updated 04/22/2011)
[c]
http://www.icle.org/modules/seminars/materials/material.aspx?book=2009cr3523&chap=20092c3523#i2009CR3523-ch3-s4
[d]
http://www.icle.org/modules/seminars/materials/material.aspx?book=2009cr3524&chap=20092c3524
[e]
http://www.icle.org/ContentFiles/Partners/SeminarMaterials/2011CA3556/20112A3556-ExA.pdf
[f]
Shade v Wright, ______ Mich App ______ (December 2, 2010). Midland County -
Affirmed.
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