Some time has passed since the entry of your last custody and parenting time Order. You now want to change parenting time but are not sure how accomplish the change. It is well understood that child custody, parenting time and child support are always modifiable until the child reaches the age of 18. However, the Court will often deny Motions to Change parenting time by citing that there has not been a change of circumstances or proper cause since the entry of the last order. The purpose of this blog is to provide you with some background regarding what is required to modify parenting time.
Threshold hearing: Proper Cause or Change in Circumstances
A trial court may not examine the best interests factors and modify a prior parenting time order without first conducting a threshold inquiry to determine whether there has been “proper cause shown” or a “change of circumstances.” Terry v Affum, 237 Mich App 522, 534–535, 603 NW2d 788 (1999). The framework for evaluating “proper cause” or “change of circumstances” when a party requests to modify a parenting time order depends on whether an established custodial environment is affected and the type of modification requested.
If the proposed parenting time modification changes the child’s established custodial environment, the court should “apply the ‘proper cause and change of circumstances’ framework [from Vodvarka v Grasmeyer, 259 Mich App 499, 675 NW2d 847 (2003)]
If the modification would not change the established custodial environment but amounts to “a change in the duration or frequency of parenting time,” the standard in Shade v Wright, 291 Mich App 17, 27, 805 NW2d 1 (2010) applies. The court in Shade found that there was a sufficient change of circumstances to modify parenting time when the existing parenting time schedule precluded the minor child from engaging in high school social and extracurricular activities due to the distance between her parents’ homes in Michigan and Ohio. In reaching this holding, the court applied “a more expansive definition of ‘proper cause’ or ‘change in circumstances’” than what was articulated in Vodvarka, recognizing that normal life changes that occur during a child’s life are precisely the types of considerations a court should review in determining requests for parenting time modifications. Shade, 291 Mich App at 28.
According to MCL 722.27(1)(c), 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…”. In Vodvarka v Grasmeyer, 259 Mich App 499; 675 NW2d 847 (2003), the landmark decision on child custody modifications, the Michigan Court of Appeals found that the movant must establish proper cause or change of circumstances by a preponderance of the evidence. This is the threshold question that must be answered before the circuit court will proceed any farther on the issue of modifying custody. If proper cause or change of circumstances exists, the movant has a right to a full evidentiary hearing where the judge must decide if it is in the best interests of the child to modify custody. If proper case or change of circumstances does not exist, then the motion to modify will be denied.
A trial court may modify a previous child custody judgment or order “for proper cause shown or because of change of circumstances.” MCL 722.27(1)(c). “[P]roper 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 v Grasmeyer, 259 Mich App 499, 511; 675 NW2d 847 (2003).
Change of Circumstances
A change of circumstances means “conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed.” Id. at 513- 514 (emphasis in original). Either proper cause or a change of circumstances must be both significant and determined by reference to the statutory “best interest” factors enumerated in MCL 722.23. Id. at 511, 514. After proper cause or a change of circumstances has been demonstrated, “the trial court can then engage in a reevaluation of the statutory best interest factors.” Id. at 511.
“Because a “change of circumstances” requires a “change,” the circumstances must be compared to some other set of circumstances. And since the movant is seeking to modify or amend the prior custody order, it is evident that the circumstances must have changed since the custody order at issue was entered. Of course, evidence of the circumstances existing at the time of and before 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. As a result, the movant cannot rely on facts that existed before entry of the custody order to establish a “change” of circumstances.” Vodvarka, 259 Mich App at 514.
What is considered proper cause or change of circumstances is highly subjective and can vary from judge to judge. Please give us a call, 734.927.9782, so that we can provide our insight regarding your parenting time matter.
At Stelmock Law Firm P.C., our skilled Michigan Family Law Parenting Time attorneys handle all aspects of Michigan family law cases. Your specific situation may be somewhat different from the norm; please call,734.927.9782, the Canton Michigan Divorce Lawyers and Family Law Attorneys at Stelmock Law Firm, PC to discuss your matter. We represent clients in the Metro Detroit area (Canton, Plymouth, Northville, Livonia, Westland, Ann Arbor, Novi) and throughout Wayne, Washtenaw, Oakland, and Livingston counties. The firm’s office is located at 8556 N. Canton Center Road, Canton Michigan 48187.