Once physical custody and legal custody of a child is initially established by the circuit court between the parents, it then becomes much more difficult for either party to seek a modification of that order in the future. This impediment was intentionally created by the Michigan Legislature to maintain stability for children and prevent unnecessary litigation between spiteful parents. It is difficult to modify an existing custody order, but it is not impossible and will be granted if the circumstances warrant it. There are three determinations that a court must make before deciding whether or not to change custody:
- First, has there been proper cause or change of circumstances shown?
- Second, which parent does the child have an established custodial environment with?
- Third, it is in the best interests of the child to change custody?
This blog entry will focus exclusively on proper cause or change of circumstances.
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.
“[T]o establish ‘proper cause’ necessary to revisit a custody order, a movant must prove by a preponderance of the evidence the existence of an appropriate ground for legal action to be taken by the trial court. The appropriate ground(s) should be relevant to at least one of the twelve statutory best interest factors, and must be of such magnitude to have a significant effect on the child’s well-being.” Vodvarka, 259 Mich App at 512.
“[I]n order to establish a change in circumstances, a movant must prove that, since the entry of the last 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 . . . [T]he evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child.” Vodvarka, 259 Mich App at 513.
“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. Here are some situations where the appellate courts have determined that proper cause or change of circumstances existed:
- Douglas v Eaton, unpublished per curiam opinion of the Court of Appeals, issued May 25th, 2010 (Docket No. 294177) – The Michigan Court of Appeals found proper cause where evidence showed that the parties had an inability to co-parent together and this “affected the parties’ ability to facilitate a close relationship between the children and the other parent”. Even if this did not amount to a change of circumstances, evidence was sufficient that there was still proper cause to revisit the current custody order.
- Poag-Emery v Emery, unpublished per curiam opinion of the Court of Appeals, issued April 22nd, 2014 (Docket No. 318401) – The Michigan Court of Appeals found proper cause and change of circumstances where the mother refused to consider counseling for a child where the daycare worker strongly recommended this help be sought to deal with “bouts of aggressiveness” before kindergarten. The mother flatly refused to consider counseling of any kind or recommend a different counselor despite qualified advice. “Her refusal to consent to counseling of any kind significantly affected the child’s well-being.”
- McRoberts v Ferguson, 322 Mich App 125; 910 NW2d 721 (2017) – The Michigan Court of Appeals found proper cause and change of circumstances where a party deliberately and repeatedly obstructed parenting time which caused “interference with the child’s and [father’s] relationship.” In that case, the mother was found in contempt of court on three occasions for failing to allow the father to exercise his parenting time.
- Adkins v Piechan, unpublished per curiam opinion of the Court of Appeals, issued November 21st, 2017 (Docket No. 337745) – The Michigan Court of Appeals found proper cause and change of circumstances where, although “the CPS investigation was unsubstantiated and that defendant has not been proven to have been in a sexual relationship with any… teenage girls”, the grounds proven were “relevant to at least one of the twelve statutory best interest factors” and were “of such magnitude to have a significant effect on the child’s well-being.” The defendant’s relationships with numerous high-school-aged children definitely affected the “love, affection, and other emotional ties” between defendant and his children where the defendant ignored the child’s pleas to stop having his high-school-aged friends over. Additionally, evidence shown that the defendant helped those teenagers skip school by offering his home as refuge goes against his moral fitness as a parent.
- Ainsworth v Dunkel, unpublished per curiam opinion of the Court of Appeals, issued December 11th, 2018 (Docket No. 344311) – The Michigan Court of Appeals found proper cause and change of circumstances where the parent, since the last custody order, opted to reside in a different home from the child and left him in the extensive care of the grandparents, which “does not indicate the presence of a strong affection or emotional tie…, nor a serious disposition to provide love, affection, guidance or a stable home environment to the child.”
Likewise, here are some circumstances where the appellate courts have determined that proper cause or change of circumstances DID NOT exist:
- Dennis v Goyer, unpublished per curiam opinion of the Court of Appeals, issued July 1st, 2014 (Docket No. 318613) – The Michigan Court of Appeals did not find proper cause or change of circumstances where the defendant was seriously injured in an automobile accident in 2010 but the plaintiff did not file a motion to change custody until 2013. While the defendant “was in extremely poor condition following the accident”, she had “rebounded considerably by the time plaintiff’s motion to change custody was filed nearly three years later.” While the defendant still lived with some physical and mental limitations, it did not rise to the level of a “significant” effect on the child’s well-being. The evidence showed that the defendant was still able to attend the child’s extracurricular activities, take the child to medical appointments and provide basis caretaking functions.
- Hale v Hale, unpublished per curiam opinion of the Court of Appeals, issued March 17th, 2015 (Docket No. 323899) – The Michigan Court of Appeals did not find proper cause or change of circumstances where defendant has a prior criminal record that predates the last custody order and that a current arrest warrant was issued for a forgery charge. The issuance of a warrant does not mean that the defendant would actually be convicted of forgery or actually spend time in jail. The motion was premature until such time came where the defendant was incarcerated and the children are left without care.
- Stumpe v Stumpe, unpublished per curiam opinion of the Court of Appeals, issued August 18th, 2016 (Docket No. 328614) – The Michigan Court of Appeals did not find proper cause or change of circumstances where the plaintiff alleged that defendant has a “past substance abuse, drinking, and partying lifestyle” that affected her ability to parent. The trial court determined that the plaintiff actually encourage the defendant’s bad behavior prior to the end of their relationship and that defendant complied with a drug test that came back negative. Even though the defendant liked to party, there was no evidence that “her drinking did not rise to the level of rendering her an unfit parent.”
- Vanerdewyk v Seiler, unpublished per curiam opinion of the Court of Appeals, issued April 18th, 2017 (Docket No. 335732) – The Michigan Court of Appeals did not find proper cause or change of circumstances where the defendant “was engaged, had fathered another child, and was living with his fiancée, their child, and her five-year-old son”, and the defendant “did not sufficiently cooperate with [plaintiff] regarding important decisions in the child’s life, and that, on one occasion, the child came to a parenting-time visit with a second-degree burn on his finger.” The plaintiff further alleged that he was building his career so he could take better care of the child and that the defendant would cancel medical appointments without informing him first. The trial court properly determined that all of “the allegations in plaintiff’s motion did not represent anything other than “normal life change (both good and bad) that occur during the life of a child.”
- Malish v Marcelli, unpublished per curiam opinion of the Court of Appeals, issued September 19th, 2017 (Docket No. 337990) – The Michigan Court of Appeals did not find proper cause or change of circumstances where the defendant alleged that he disagreed with plaintiff’s handling of certain medical/dental issues and that there was a teacher’s strike at the child’s school. The court found that “disagreements were common among parents that shared legal custody of a child, but they did not rise to the standard for a finding of proper cause or change of circumstances.” “Rather, medical and dental issues arising in a minor child’s life are ‘the normal life changes’ that one would expect.” Regarding the teacher’s strike, there was no evidence that it would have an effect on the child’s well-being.
The examples above are illustrative and may apply different to different families in different situations. Proper cause or change of circumstances is fact-dependent and may be viewed differently depending on the judge that is listening to it. There is no substitute for consulting with a knowledgeable attorney to determine whether or not you meet the statutory threshold to pursue a custody modification. If this step fails, then the motion can proceed no further. However, even if proper cause or change of circumstances is shown, the trial court must still move on to make determinations on established custodial environment and best interest factors.
If you or a loved one need legal representation in any family law matter or have questions about proper cause or change of circumstances in your case, do not hesitate to contact the lawyers at Kershaw, Vititoe & Jedinak PLC today.